SECOND  EDITION 


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The  Present  Status  of 
Family  Desertion  and 
Non-Support  Laws 


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THE  PRESENT  STATUS  OF  FAMILY  DESER- 
TION AND  NON-SUPPORT  LAWS* 


WILLIAM  H.  BALDWIN 

\Hl  i' 


The  importance  of  the  subject  of  family  desertion  and  non-support 
has  not  decreased  during  the  last  six  years.  Of  the  replies  received 
to  the  question  addressed  to  many  charitable  and  humane  societies 
throughout  the  country,  as  to  whether  the  evil  was  decreasing  or 
increasing,  nine  per  cent  declare  that  it  is  decreasing,  twenty-seven 
per  cent  think  it  stationary,  while  sixty-four  per  cent  declare  that 
it  is  increasing.  It  still  occupies  a large  place  in  the  work  of  every 
Charity  Organization  Society,  and  the  economic  burden  which  it 
imposes  rests  heavily  on  other  agencies  also. 

The  importance  of  the  subject  is  emphasized  in  the  social  problems 
connected  with  children,  where  it  has  come  to  be  more  fully  under- 
stood that  juvenile  delinquency  and  incorrigibility  are  often  the  direct 
result  of  the  lack  of  proper  provision  in  the  home  for  the  physical 
wants  of  the  child,  and  that,  even  if  food  and  clothing  do'  not  render 
moral  teaching  and  discipline  unnecessary,  they  must  precede  them 
before  the  latter  can  be  effective. 

An  examination  of  the  laws  of  all  the  states  at  the  beginning  of 
1905  showed  that  desertion  or  non-support,  or  both,  was  a misde- 
meanor in  forty  states,  a felony  in  four  and  a quasi-criminal  offense  in 
;one,  while  in  Iowa,  Nevada,  Oregon,  Tennessee  and  Texas  there  was 
no  law  on  the  subject. 

Since  then,  because  of  the  increasing  interest,  fifty-two  laws 
bearing  on  the  offense  have  been  enacted  by  thirty  states  and  terri- 
tories, of  which  some  are  re-enactments  or  changes.  Those  passed 
by  the  states  of  Arkansas,  California  (2),  District  of  Columbia, 


<ZJ 


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Idaho,  Maine,  Massachusetts  (2),  Minnesota,  Nebraska,  Nevada,  New 


* Delivered  at  the  National  Conference  of  Charities  and  Corrections,  Poston,  Mass., 
June  10,  1911. 


o 37155 


Hampshire,  Oregon,  Rhode  Island,  Tennessee  and  Texas  make  the 
offense  misdemeanor;  those  passed  by  California  (2)  (later),  Connec- 
ticut, Indiana  (2),  Iowa,  Maine  (later),  Missouri,  New  York,  North 
Dakota,  Ohio,  Utah  and  Washington  make  the  offense  felony;  four 
passed  by  Colorado,  Maryland,  Michigan  and  Ohio  provide  for  com- 
pensation for  men  under  sentence,  and  nineteen  other  laws  passed 
by  various  states  relate  to  details  concerning  the  definition,  the  evi- 
dence or  other  features  of  the  law. 

In  addition  to  these,  the  eighteen  states  of  California,  Colorado, 
Connecticut,  Illinois,  Indiana,  Kansas,  Kentucky  (2),  Minnesota, 
Nebraska,  Nevada,  Ohio  (2),  Oregon,  Pennsylvania,  Rhode  Island, 
South  Dakota,  Texas,  Virginia  and  Washington  passed  twenty  laws 
making  contributory  dependency,  or  responsibility  on  the  part  of  adults 
for  dependency  and  neglect  in  the  case  of  children,  a misdemeanor, 
punishable  in  many  cases  by  a fine  of  $1,000  or  imprisonment  for  one 
year,  or  both. 

The  non-support  law  of  Texas,  passed  in  1907,  was  declared 
unconstitutional  in  1909,  but  the  contributory  dependency  law  of  that 
year  still  protects  children. 

Revising  the  classification  of  the  laws  relating  to  desertion  and 
non-support  as  they!  stood  at  the  end  of  1910,  after  the  enactment  of 
all  those  given  above,  and  listing  each  state  according  to  the  highest 
grade  of  offense  in  any  of  its  laws,  the  situation  was  as  follows : 


Misdemeanor — Alabama 

Nevada 

Arizona 

New  Hampshire 

Arkansas 

New  Jersey 

Colorado 

New  Mexico 

Delaware 

North  Carolina 

District  of  Columbia 

North  Dakota 

Florida 

Oklahoma 

Georgia 

Oregon 

Idaho 

Pennsylvania 

Illinois 

Rhode  Island 

Kansas 

South  Carolina 

Kentucky 

South  Dakota 

Louisiana 

Tennessee 

Maryland 

Texas 

Massachusetts 

Vermont 

Minnesota 

Virginia 

Mississippi 

West  Virginia 

Montana 

Wyoming — 36 

2 


Felony — 


California 

Connecticut 

Indiana 

Iowa 

Maine 

Michigan 


Missouri 
Nebraska 
New  York 
Ohio 
Utah 

Washington 
Wisconsin — 13 


Tendency  of  Legislation 


In  this  legislation  of  the  last  six  years,  three  principal  tendencies 
are  discernible : 

1.  To  make  the  offense  felony,  chiefly,  and  in  some  cases  solely 
for  the  purpose  of  securing  the  extradition  of  offenders,  but  also  to 
make  a greater  impression  upon  them,  perhaps  on  the  principle  of  the 
stronger  the  dose  the  better. 

2.  To  hold  parents  or  guardians  responsible  to  the  Juvenile 
Court  where  they  do  or  omit  any  acts  which  contribute  to  the  depend- 
ency or  neglect,  as  well  as  to  the  delinquency,  of  the  children  for  whom 
they  are  responsible. 

3.  To  establish  special  courts  for  dealing  with  cases  of  non- 
support and  neglect,  such  as  the  Domestic  Relations  Courts  in  Buffalo, 
New  York  City  and  Chicago. 

This  last  development  is  the  most  recent  and  not  the  least 
important. 


The  Nature  of  the  Offense 

The  offense  to  which  these  laws  relate  is  peculiar.  In  reality  it 
consists  of  failure  to  support  the  family.  It  is  often  spoken  of  simply 
as  “family  desertion”  because,  when  a man  deserts  his  family,  whether 
to  avoid  supporting  them  or  for  some  other  reason,  he  usually  does 
cease  to  support  them,  so  that  non-support,  the  important  part  of  the 
condition,  is  implied  by  desertion. 

It  is  true  that  the  father  has  duties,  but  the  man  who  deserts  is 
often  not  very  helpful  as  a parent,  and  if  support  was  furnished,  the 
wife  could,  in  many  cases,  manage  the  family  as  well  without  him. 
Desertion  often  seems  to  be  the  graver  crime,  because  the  man  can 
make  himself  comfortable  elsewhere,  while  if  he  remains  at  home  he 
must  share  the  poverty  which  his  failure  to  furnish  support  causes ; 
but  his  offense  against  the  public  is  the  same  in  either  case. 

Some  laws  do  not  cover  non-support  alone  because  they  make 
the  offense  consist  of  desertion  and  non-support,  but  the  law  should 


3 


cover  either  desertion  or  non-support,  not  only  because  it  then  applies 
whether  a man  deserts  or  not,  but  also  because  non-support  is,  by  its 
nature,  a continuing  offense,  for  which  a man  may  be  punished  any 
number  of  times,  while  it  has  been  held  in  some  places  that  desertion 
is  a single  act,  for  which  a man  cannot  be  punished  more  than  once 
unless  he  returns  to  live  with  his  wife  and  again  deserts. 

Non-support  at  first  glance  seems  to  be  a private  matter.  It 
becomes  a public  offense  when  society  is  obliged  to  furnish  support 
for  the  family,  or  when  the  lack  of  it  destroys  the  home  and  demoral- 
izes the  children.  It  should,  therefore,  be  punished,  but  the  punish- 
ment is  difficult  because  the  question  is  complicated  by  the  private 
relations  involved.  Ordinarily  the  interests  of  the  offender  and  the 
injured  party  are  adverse,  or  at  least  separate.  The  man  who  picks  a 
pocket  may  be  punished  indefinitely  without  further  injury  to  the 
person  who  has  lost  his  purse. 

It  is  not  so  in  the  case  of  non-support  because,  although  it 
deserves  severe  punishment  as  an  offense  against  the  public,  it  is 
primarily  an  offense  against  the  family,  whose  interest  is  dependent 
upon  the  welfare  of  the  man,  and  for  this  reason  a punishment  which 
is  quite  appropriate  for  other  crimes  is  not  at  all  suitable  for  this. 
Considering  the  man  only,  it  would  be  quite  proper  to  give  him  a 
longer  sentence  than  that  of  the  pickpocket,  but  to  do  so  in  the  ordinary 
way  would  simply  aggravate  and  emphasize  the  injury  to  the  family. 
The  indignation  so  justly  felt  in  behalf  of  innocent  women,  and 
especially  of  helpless  children,  has  prompted  the  enactment  of  some 
laws  involving  very  severe  punishment.  So  far  as  these  deter  others 
from  similar  acts  they  may  be  beneficial;  but  regard  for  the  interests 
of  the  family  points  to  a different  course  and  suggests  that  in  this 
offense,  more  than  in  any  other,  it  is  the  part  of  wisdom  to  seek  first, 
whenever  possible,  to  restore  the  normal  family  relations  and  benefit 
the  family  while  relieving  society  of  the  burden  of  punishing  the 
offender,  and  to  make  the  punishment  provided,  which  should  be 
sufficiently  severe,  tend  towards  this. 

It  is  the  conflict  between  this  appreciation  of  the  gravity  of  the 
offense  and  a regard  for  the  family,  who  are  the  first  sufferers,  which 
has  led  to  such  diverse  provisions  in  the  various  laws,  and  the  best 
law  is  one  which  combines  these  opposing  considerations  in  a nice 
adjustment.  It  is  the  failure  on  the  part  of  many  public  officials  to 
realize  that  non-support  is  anything  more  than  a private  matter,  and 
so  of  little  importance,  which  has  interfered  with  the  administration 
of  many  laws,  and  sometimes  practically  nullified  their  best  features. 


4 


The  Purpose  of  the  Laws 


The  ultimate  purpose  of  all  these  laws  is  to  oblige  the  offender 
to  support  the  family  properly,  and  to  diminish  the  burden  which 
non-support  lays  upon  the  community ; and  it  is  in  the  light  of  the 
complex  relations  and  influences  that  they  must  be  considered.  An 
attempt  to  discover  what  the  practical  results  of  them,  and  of  any 
important  changes  in  them,  have  been  in  each  state  during  the  last 
five  years  revealed  many  difficulties,  because  of  the  conflicting 
influences  and  purposes  which  surround  the  subject. 

A small  number  of  prosecutions  may  be  due  to  a lack  of  interest 
in  the  subject  or  to  a less  number  of  offenders ; the  dismissal  of  la 
large  proportion  of  the  cases  brought  may  indicate  a lack  of  zeal  in 
prosecuting  them,  or  may  be  due  to  more  earnest  efforts  to  adjust 
them  and  secure  voluntary  support  without  resorting  to  a trial  in 
Court ; and  a proportionately  large  number  imprisoned  may  show 
either  a certainty  of  punishment  or  a failure  to  effect  the  desired 
result  without  it.  The  amounts  collected  for  support  from  men 
brought  into  Court  would  be  the  best  test,  but  just  comparisons  are 
difficult  here,  also,  because  the  collections  are  made  in  different  ways 
in  different  places,  and,  when  ordered  to  be  paid  directly  to  the  wife, 
no  account  is  usually  kept  of  them. 

It  was  found  to  be  impossible,  also,  to  give  even  a brief  account 
of  the  situation  in  each  of  the  many  important  states,  which  present 
interesting  features,  within  the  limited  time  allotted ; and  an  attempt 
will,  therefore,  be  made  to  treat  the  general  situation  by  topics,  bring- 
ing out  in  connection  with  them  the  conditions  existing  in  various 
states  which  bear  upon  the  main  features  of  the  laws  as  they  stand. 

It  is  with  a full  realization  of  the  difficulty  of  doing  exact  justice 
to  any  state  or  community,  but  with  the  intention  of  stating  the  situa- 
tion in  each  case  referred  to  as  fairly  as  possible,  in  order  that  both 
the  favorable  and  unfavorable  features  of  each  may" be  helpful  to  those 
who  are  struggling  with  this  perplexing  problem,  that  some  account  of 
the  more  important  developments  is  undertaken. 

States  Having  Felony  Laws 

The  number  of  states  having  felony  laws  has  been  increased  from 
four  to  thirteen.  The  reason  for  the  change  to  felony  in  almost  all, 
if  not  all,  of  these  has  been  to  make  the  extradition  of  deserters  who 
have  gone  to  other  states  possible.  It  was  wholly  unnecessary  to  make 
the  change  on  this  account,  as  facts  stated  hereafter  will  show,  but 
there  was  also,  in  some  cases,  a belief  that  a severer  punishment  would 


be  more  effective.  The  very  passage  of  such  a law  indicates  an 
increasing  interest  in  the  subject,  and,  as  might  have  been  expected, 
the  laws  in  some  of  these  states  are  better  enforced  than  in  states  which 
have  paid  less  attention  to  it. 

As  to  these,  it  may  be  stated,  generally,  that  prosecuting  officers 
think  the  severity  of  the  law  an  advantage,  because  it  enables  them 
to  use  the  possible  punishment  as  a club  to.  secure  compliance  with 
the  law,  without  an  actual  trial.  Almost  all  these  laws  contain  pro- 
visions for  release  on  a bond  or  promise  to  furnish  support,  or  to 
comply  with  an  order  to  pay  a certain  sum  at  stated  intervals;  and  it 
often  happens  that  when  a man  is  brought  before  a justice  or  magis- 
trate, who  would  otherwise  be  obliged  to  bind  him  over  to  a higher 
Court  because  he  cannot  himself  try  the  case,  the  offender,  fearing 
the  possible  punishment,  makes  the  necessary  promise  and  secures 
his  freedom.  There  is  usually  a provision  for  release  in  a similar  way 
when  the  man  is  brought  up  in  the  higher  Court,  so  that  in  a large 
number  of  cases  the  formality  and  expense  of  a jury  trial  are  avoided. 
So  far  as  the  terror  inspired  by  a possible  state  prison  sentence 
prompts  the  man  to  do  his  duty,  it  is  an  advantage,  and  it  is  natural 
that  a prosecutor,  who  occupies  a position  antagonistic  to  the  man 
under  consideration,  should  want  to  be  able  to  punish  him  most 
severely  in  case  it  finally  becomes  necessary  to*  try  him,  thinking  little, 
perhaps,  of  the  additional  suffering  which  this  may  cause  those  on 
account  of  whose  unhappy  condition  the  proceeding  has  been 
instituted. 

On  the  other  hand,  those  who  are  interested  in  the  families,  and 
in  the  results  which  the  prosecutions  have  on  them,  see  another  side 
of  the  question.  They  find  that  the  wife  hesitates  to  charge  her  hus- 
band with  felony,  that  after  having  been  nerved  by  ill-treatment  to 
do  this  she  is  apt  to  relent,  and  that  there  are  difficulties  connected 
with  the  more  severe  charge  which  are  absent  from  a proceeding 
which  is  confined  to  the  inferior  Courts. 

Referring  briefly  to  the  situation  in  the  states  which  have  passed 
felony  laws  within  the  last  six  years,  the  change  has  made  littlte 
difference  in  Connecticut  because  of  a wise  provision  that  the  lower 
Courts  should  have  power  to  render  final  judgment  in  all  cases  which 
did  not  require  a more  severe  punishment  than  they  were  able  to 
inflict  under  the  old  law.  Not  more  than  two  per  cent  of  the  cases 
reported  have  found  their  way  beyond  the  Courts  in  which  they  were 
tried  under  the  previous  law,  and  in  no  case  has  the  penalty  for  felony 
been  inflicted. 

In  New  York  much  interest  was  taken  in  the  new  law,  particu- 

6 


larly  by  the  United  Hebrew  Charities  of  New  York  City,  and  by 
the  authorities  in  Buffalo,  and  many  deserters  who  might  have  been 
reached  under  the  previous  law,  had  it  not  been  assumed  that  they 
were  beyond  reach,  were  brought  back.  Statements  made  by  Mr. 
F.  E.  Wade,  of  Buffalo,  to  whose  efforts  the  passage  of  the  law  was 
largely  due,  at  the  State  Conference  in  1909,  and  by  the  United 
Hebrew  Charities,  show  that  it  has  been  well  worth  while  to  bring 
these  men  back,  because  the  sums  which  they  have  contributed  to  the 
support  of  their  families  have  been  largely  in  excess  of  the  expense 
of  extradition. 

The  felony  law  in  New  York,  however,  seems  to  be  used  only 
when  extradition  is  sought,  and  though  the  prosecutions  in  New  York 
City  When  brought  are  diligent  and  successful,  they  constituted  less 
than  eight  per  cent  of  the  complaints  made  in  1909  and  1910,  when 
there  were  768  complaints,  with  only  fifty-five  prosecutions  in  Court 
in  the  two  years.  The  prosecutions  under  the  felony  law  are  appar- 
ently less  than  two  per  cent  of  all  those  for  desertion  and  non-support, 
the  remainder  being  brought  under  the  misdemeanor  and  disorderly 
persons  laws,  which  will  be  spoken  of  later  in  connection  with  the 
Domestic  Relations  Courts. 

Six  years  ago  the  non-support  law  of  California  applied  to 
children  only,  but  was  changed  to  include  the  wife  in  1907,  and  again 
changed  to  make  non-support  of  either  wife  or  children  a felony 
on  March  10,  1909.  The  offense  under  the  cruelty  statute  was 
changed  to  felony  also  on  the  following  day.  Neither  law  was  changed 
in  any  other  respect,  and  it  is  definitely  stated  by  several  parties  that 
the  purpose  of  raising  the  offense  to  felony  was  to  secure  extradition, 
because  a man  coufd  not  be  brought  back  from  another  state  under  a 
misdemeanor  charge,  though  there  is  one  intimation  that  it  was 
thought  it  would  be  an  advantage,  by  one  advocate  of  the  change, 
to  put  the  cases  into  the  Superior  Court.  No  instance  could  be 
found  of  an  attempt  to  reach  a deserter  under  the  former  law. 

Reports  as  to  the  effect  of  the  change  in  California  are  conflicting, 
depending  on  the  point  of  view.  The  prosecuting  officers  in  some 
cities  think  the  severity  of  the  law  an  advantage  because  many  cases 
are  settled  without  a final  trial,  though  they  also  complain  that  wives 
relent,  and,  when  a final  trial  is  necessary,  there  is  a delay  of  perhaps 
five  weeks  in  San  Francisco  before  the  case  is  heard  in  the  Superior 
Court,  on  account  of  the  preparation  of  the  papers,  during  which 
time  the  man  lies  in  the  jail.  This  may  be  regarded  as  a salutary 
period  of  reflection,  which  will  incline  him  to  yield  without  trial,  or 
as  a needless  delay  in  reaching  the  end  of  the  case. 


The  Humane  Society  of  San  Francisco,  which  looks  after  most 
of  the  cases,  regrets  the  change  because  it  has  made  it  more  difficult 
to  handle  them. 

Indiana,  at  the  session  of  1907,  two  days  after  passing  a con- 
tributory dependency  law  making  non-support  a misdemeanor,  passed 
a bill  making  desertion  and  non-support  of  wife  or  children  felony, 
and  a week  later  another  law,  entitled  a “child  desertion”  statute, 
making  non-support  of  children  a felony. 

The  quick  succession  of  these  laws  recalls  the  story  of  the  man 
who  replied  to  the  inquiry  of  the  undertaker,  after  the  death  of  his 
mother-in-law,  as  to  whether  he  should  embalm,  cremate  or  bury : 
“Embalm,  cremate  and  bury ; take  no  chances and  Indiana  seemed 
to  be  very  well  equipped  for  handling  men  not  inclined  to  properly 
support  their  children. 

There  is  less  difficulty  in  the  procedure  under  a felony  law  in 
Indiana  than  in  most  other  states,  because  the  case  may  be  begun  by 
an  affidavit  and  without  an  indictment,  except  for  treason  and  murder, 
and  the  law  does  not  require  that  all  felony  cases  shall  be  tried  by  a 
jury.  The  laws  seem  to  be  working  very  well.  It  has  been  possible 
to  handle  in  the  City  Courts  of  the  larger  cities,  which  are  always' 
in  session,  cases  which  have  not  involved  a punishment  greater  than 
misdemeanor,  and  the  procedure  in  other  cases  has  been  less  cumber- 
some than  it  is  in  states  like  Pennsylvania,  in  which  they  must  be 
begun  by  an  indictment  and  tried  in  every  instance  before  a jury. 

In  Indianapolis  ninety  per  cent  of  all  prosecutions  are  brought 
in  the  Juvenile  Court  on  a misdemeanor  charge,  because  this  Court 
is ‘better  equipped  for  handling  them  and  they  £et  better  attention 
there. 

In  Iowa,  which  had  no  law  making  non-support  or  desertion  a 
crime,  all  prosecutions  must  be  brought  under  a felony  charge. 
Here,  also,  prosecuting  officers  display  much  interest  and  think  the 
severity  of  the  law  an  advantage,  but  it  is  also  stated  that  wives  are 
unwilling  to  institute  or  follow  up  prosecutions,  and  that  the  law  is 
too  severe.  On  the  whole,  the  results  seem  to  have  been  very  good. 

In  Maine,  where  the  law  six  years  ago  was  quite  inadequate,  a 
good  misdemeanor  statute  was  passed  in  1907,  but  the  offense  in  this 
was  raised  to  felony  in  1909,  in  order  to  provide  for  extradition, 
* although  no  attempt  had  been  made  to  bring  back  a deserter  under 
the  misdemeanor  law,  and  since  then  Maine  has  had  a felony  law 
only.  The  number  of  prosecutions  in  Portland  has  been  about  the 
same  under  each  law,  and  the  more  cumbersome  procedure  has  proved 
to  be  a disadvantage,  because  the  only  man  brought  back  from  any 


S 


state  was  obliged  to  lie  in  jail  for  three  months  awaiting  the  session 
of  the  higher  Court,  in  which  alone  he  could  be  tried.  The  severer 
sentence  has  never  been  imposed. 

The  law  in  Missouri  was  changed  to  felony  as  to  children  and 
apprentices  on  June  4,  1909,  but  little  seems  to  have  , been  accom- 
plished under  it  because  of  a decided  lack  of  interest. 

No  definite  report  of  cases  was  received  from  Utah,  but  the 
severity  of  the  law  which  made  the  offense  felony  in  1907  is  con- 
sidered to  be  a disadvantage. 

In  Washington  the  change  to  felony  was  made  in  1907  also, 
and  a good  deal  of  interest  has  been  taken  in  the  execution  of'  , the 
law.  It  has  not  been  possible  to  get  any  data  as  to  the  number1  of 
prosecutions,  but  the  officials  who  have  charge  of  them  seem  well 
pleased  with  the  law. 

Of  the  four  states  which  had  felony  laws  six  years  ago, 
Michigan  and  Ohio  had  also  misdemeanor  laws,  while  Nebraska  and 
Wisconsin  had  not.  The  law  in  Nebraska  seems  to  have  been  fairly 
well  enforced,  but  as  the  offense  consists  of  desertion  and  non-sup- 
port, it  was  not  possible  under  it  to  reach  non-support  cases  in  which 
a man  did  not  desert.  Instead  of  changing  the  existing  law  to  apply 
to  desertion  or  non-support,  it  was  thought  best  to  pass  another  law 
in  1909  which  applies  to  non-support  only,  and  makes  the  offense  a. 
misdemeanor;  so  that  Nebraska  now  has  two  laws  also. 

Wisconsin  has  been  working  under  a felony  law  only,  and 
though  the  prosecutions  seem  to  have  been  numerous,  with  much 
interest  taken,  complaint  has  been  made  that  it  is  difficult  to  secure 
convictions  because  of  the  serious  charge.  The  number  of  men 
committed  to  the  state  prison  during  the  five  years  was  sixty, 
a larger  number  than  in  any  other  state  except  Ohio,  though  the 
average  sentence  is  one  year  as  compared  with  two  years  in  Ohio. 

From  Michigan  the  reports  were  somewhat  meagre.  It  is  stated 
that  the  felony  law  is  effective,  more  so~  in  some  respects  than  the 
non-support  law,  but  the  relative  number  of  prosecutions  in  each 
could  not  be  learned. 

In  no  state  is  the  problem  of  non-support  and  desertion  dealt 
with  more  effectively  than  in  Ohio,  where  the  laws  have  been  care- 
fully developed  during  an  experience  of  many  years.  The  strong 
Humane  Societies,  which  have  charge  of  the  matter  in  the  different 
cities,  have  been  energetic  in  developing  laws  under  which  they 
can  make  their  prosecutions  effective,  and  they  have  a state  organiza- 
tion which  not  only  enables  them  to  secure  united  and  well-considered 
action,  but  also  to  head  off  the  sporadic  and  ill-considered  impulses 


9 


to  improve  the  law  which  have  left  their  mark  upon  so  many  statutes, 
especially  those  relating  to  desertion  and  non-support. 

The  collections  in  the  leading  cities  are  large,  but  the  cases  are 
almost  all  brought  under  the  misdemeanor  law,  except  when  extra- 
dition is  desired. 

Juvenile  Courts 

On  account  of  the  especial  fitness  of  the  Juvenile  Court  to  deal 
with  questions  involving  family  relations,  there  has  been  a growing 
tendency  to  give  it  preference  over  the  ordinary  Courts  by  bringing 
in  it  cases  of  non-support  involving  children,  either  under  the  con- 
tributory dependency  provision  of  the  Juvenile  Court  law,  or  by  the 
transfer  to  it  of  the  work  formerly  done  under  the  non-support  law 
by  the  Police  or  Municipal  Courts  or  justices.  This  change  is  taking 
place  in  Cleveland,  where  the  Humane  Society,  which  two  or  three 
years  ago  depended  on  the  Police  Court,  now  takes  all  its  cases  to 
Judge  Addams,  partly  because  he  can  impose  a longer  sentence,  but 
mainly  because  they  get  better  attention  ; in  Columbus,  where  prac- 
tically all  such  cases  go  to  Judge  Black;  in  New  Orleans,  where 
Judge  Wilson  is  showing  a great  interest  in  this  phase  of  wrongs  to 
children  ; in  Indianapolis,  where  nine-tenths  of  the  cases  are  brought 
before  Judge  Taylor  instead  of  in  the  Criminal  Court,  and  in  Wash- 
ington, where  Judge  DeLacy  quickly  discovered  that  non-support 
lay  at  the  bottom  of  many  of  the  difficulties  in  which  children  found 
themselves. 

There  are  other  places  where  this  tendency  is  found,  but  in 
some  it  has  not  yet  been  developed,  because  the  Juvenile  Court  is 
only  part  of  another  Court  which  is  very  busy,  as  the  Probate 
Court  is  in  Ohio.  Often  the  Juvenile  Court  is  part  of  the  same  Court 
in  which  non-support  cases  were  being  brought  under  the  former 
law,  at  the  time  the  contributory  act  was  passed. 

Many  Juvenile  Court  and  probation  officers  concurred  in  the 
opinion  that  the  Juvenile  Court  ought  to  be  given  jurisdiction  in  all 
non-support  cases,  because  they  are  in  line  with  the  work  of  the 
Court.  They  will  undoubtedly  receive  more  intelligent  consideration 
there  than  in  Courts  largely  occupied  with  other  cases,  and  any 
possible  objection  to  those  cases  in  which  adults  only  are  concerned 
can  be  obviated  by  arranging  for  the  separate  hearing  which  those 
involving  children  should  also  have. 

An  amendment,  giving  the  Juvenile  Court  in  the  District  of 
Columbia  jurisdiction  in  all  such  cases,  has  been  urged  for  four 
years,  and  will  undoubtedly  be  passed  as  soon  as  the  House  finds 
time  to  give  some  attention  to  such  matters  relating  to  the  District. 


10 


Domestic  Relations  Courts 


buffalo 

The  first  Domestic  Relations  Court  was  instituted  in  March, 
1909,  in  Buffalo,  N.  Y.,  when  Judge  Simon  A.  Nash,  of  the  City 
Court,  disliking  the  idea  of  having  women  of  good  character  who 
» were  compelled  to  prosecute  cases  of  non-support  come  in  contact 

with  others  of  different  character,  instituted  a separate  session  for 
such  cases.  When  the  Court  was  reorganized  on  January  1,  1910, 
# Judge  Nash,  who  is  also  the  Juvenile  Court  judge,  took  charge  of 

the  Domestic  Relations  part. 

The  method  of  procedure  followed  is  for  the  Court  to  ascertain, 
with  the  help  of  a first-class  probation  officer,  the  status  of  the  case 
when  it  first  comes  up  or  at  a subsequent  hearing,  so  as  to  remove 
the  difficulties  by  an  earnest  talk  if  possible.  The  first  object  sought 
is  reconciliation  where  this  seems  likely  to  last,  next  rebuilding  of 
character,  and  then  the  collection  of  money  for  the  support  of  wife 
and  children.  In  the  beginning  attorneys  were  sometimes  employed 
by  one  or  both  sides,  but  after  it  was  found  that  the  Court  was 
endeavoring  to  act  in  the  mutual  interests  of  both,  the  appearance 
of  attorneys  became  infrequent,  and  the  Court  is  thus  able  to  deal 
in  its  own  way  with  the  parties  concerned. 

When  other  efforts  fail  the  Court  sends  the  defendant  to  the 
penitentiary  for  six  months  in  default  of  a bond  to  support.  It  is 
unfortunate  that  hard  labor  cannot  be  made  a part  of  this  sentence, 
and  that  the  man’s  confinement  means  that  the  total  support  of  the 
family,  while  it  lasts,  falls  on  the  public  authorities  or  private 
charity ; but  it  is  stated  that  the  men  are  usually  willing  to  support 
their  families  before  the  expiration  of  the  term,  and,  if  so,  they  are 
released  and  put  on  probation,  in  charge  of  a probation  officer,  who 
has  already  received  information  as  to  both  husband  and  wife,  and, 
knowing  all  the  circumstances,  watches  over  the  man  after  his  release, 
helps  secure  employment  for  him  and  sees  that  he  reports  regularly  as 
t to  his  work. 

These  excellent  methods  are  having  the  results  which  might  be 
expected.  The  number  of  imprisonments  is  small,  and  the  collections, 
which  were  less  than  $2,000  in  1909,  rose  to  $40,000  in  1910,  and 
are  now  being  made  at  the  rate  of  $5,000  per  month,  with  a tendency 
to  increase.  Some  abandonment  cases  are  also  handled  successfully  in 
the  same  way,  but  not  having  jurisdiction  where  the  charge  is  felony 
Judge  Nash  can  only  bind  them  over  for  the  Grand  Jury  if  his  pre- 
liminary steps  do  not  succeed. 


11 


NEW  YORK  CITY 


In  its  final  report,  in  April,  1910,  the  Page  Commission  recom- 
mended that  in  the  reorganization  of  the  inferior  Courts  of  criminal 
jurisdiction  in  New  York  City  a Domestic  Relations  Court  be  estab- 
lished in  Manhattan  and  another  in  Brooklyn,  and  this  was  done  when 
the  law  subsequently  passed  took  effect  on  September  1,  1910.  These 
Courts  have  jurisdiction  in  all  cases  of  non-support  in  which  the 
offender  is  charged  with  being  a disorderly  person,  as  well  as  in  those 
involving  failure  to  support  poor  relatives,  and  two  magistrates,  who 
were  selected  because  of  their  fitness  for  dealing  with  such  cases  and 
who  sit  alternately,  were  assigned  to  each.  The  Department  of 
Charities  and  Corrections  has  also  established  a Bureau  of  Domestic 
Relations  adjacent  to  each  Court^  to  which  applications  for  relief 
usually  come  first,  and  this  bureau  has  been  able  to  adjust  many  cases 
and  relieve  the  Court  of  a great  deal  of  work  without  any  detriment 
to  the  interests  of  those  concerned. 

Previous  Conditions  in  New  York  City 

Prior  to  this  time  the  procedure  in  such  cases  had  not  been 
satisfactory.  Women  obliged  to  complain  of  their  husbands  had  often 
been  forced  to  sit  in  Court  while  the  cases  of  persons  charged  with 
various  crimes,  which  were  considered  to  be  more  important,  were 
disposed  of,  and  when  the  cases  did  come  up,  being  only  a part  of  the 
magistrate's  work,  they  were  apt  not  to  receive  the  attention  which 
they  deserved.  When  continued,  as  is  often  necessary  in  dealing  with 
such  cases,  it  frequently  happened  that  the  matter  came  up  at  a subse- 
quent hearing  before  a judge  to  whom  the  case  was  entirely  new, 
which  prevented  consistent  and  intelligent  treatment  of  any  one  case. 
The  result  was  that  the  magistrates  took  little  interest  in  such  cases ; 
and,  perhaps  because  of  this  general  feeling  in  regard  to  them,  some 
of  the  probation  officers,  whose  duty  it  was  to  look  after  the  defendant 
when  released  on  an  order  to  support,  seemed  to  think  their  work 
consisted  in  protecting  the  husband  from  the  wife’s  importunities 
rather  than  in  compelling  him  to  make  regular  payments  for  the 
support  of  the  family.  Even  with  the  best  intentions  it  was  impossible, 
because  of  the  confusion  of  judges,  for  any  one  of  them  to  do  justice 
to  non-support  cases,  and  Judge  Cornell  has  said  that  he  fully  realized 
that  he  was  not  able  to  handle  them  properly  when  they  came  before 
him. 

With  the  establishment  of  the  Domestic  Relations  Courts  the 
situation  was  changed  entirely.  The  four  magistrates  assigned  to 
them  were  selected  because  of  their  special  fitness  in  character  and 


12 


temperament  for  securing  the  best  results  in  such  cases,  and  no'  one 
could  take  more  interest  in  the  accomplishment  of  this  end  than  these 
judges  do.  The  very  atmosphere  of  the  court  room  and  its  sur- 
roundings manifests  this  change.  Both  complainant  and  defendant 
are  given  ample  opportunity  to  bring  out  the  facts,  and  the  judges 
make  every  effort  to  have  the  parties  adjust  their  differences  without 
compulsion.  This  is  often  accomplished  by  an  earnest  admonition 
from  the  Court  or  by  a continuance  to  give  the  offender  an  opportunity 
to  take  a wiser  view  of  the  situation;  and,  because  the  magistrates 
continue  to  have  the  control  of  the  cases,  they  are  able,  in  any  subse- 
quent or  final  order,  to  be  consistent  with  all  that  has  gone  before. 
It  is  because  of  the  satisfaction  which  arises  from  being  able  to 
handle  the  cases  properly  in  this  way,  and  of  an  appreciation  of  the 
great  importance  of  the  interests  which  they  involve,  which  constant 
consideration  of  the  subject  gives,  that  the  judges  have  such  an 
interest  in  their  work. 

Some  Present  Drawbacks 

There  are,  however,  some  drawbacks.  First,  the  Court  in  Man- 
hattan has  no  adequate  system  of  probation,  and  the  lack  of  it  is 
only  imperfectly  supplied  by  the  Bureau  of  Domestic  Relations.  If 
the  Court,  through  competent  probation  officers,  could  thoroughly 
investigate  each  case  which  comes  up,  and  could  also  follow  up  men 
who  are  ordered  to  make  payments,  the  advantage  would  be  great. 
This  is  now  being  done  in  the  Court  in  Brooklyn. 

Second,  the  Courts  are  not  in  a position  to  punish  as  they  deserve 
the  men  who  fail  to  comply  with  their  orders  or  who,  for  any  other 
reason,  need  such  punishment.  The  limit  of  the  workhouse  sentence 
is  six  months,  and  the  labor  connected  with  it  is  not  so  hard  as  to  be 
a deterrent.  All  contribution  to  the  family  stops  when  the  confinement 
begins,  and  the  result  is  that  in  many  cases  the  wife  soon  joins  her 
husband  in  asking  for  his  release  Out  of  123  men  committed  by 
the  Domestic  Relations  Court  of  Manhattan  during  the  first  seven 
months  of  its  existence,  seventy-three,  or  nearly  sixty  per  cent,  had 
been  released  up  to  May  19,  1911,  by  order  of  the  Court,  before  com- 
pleting the  sentence,  the  average  duration  of  their  confinement  being 
forty-four  days ; and  as  the  sentences  of  thirty-seven  out  of  the  remain- 
ing fifty  had  not  expired  at  that  time  it  is  ‘possible  that  this  percentage 
may  be  still  greater. 

If  these  men  had  been  forced  to  stay  until  they  were  willing  to 
support  their  families,  and  they  themselves  had  asked  to  be  released 


13 


in  order  to  do  this,  the  results  might  be  satisfactory;  but  when  the 
release  is  granted  because  the  wife  begs  for  it,  as  in  so  many  of  these 
cases,  it  leaves  the  husband  still  in  at  least  partial  control  of  the  field. 

Third,  the  Domestic  Relations  Court  cannot  dispose,  as  the  City 
Court  of  Buffalo  can,  of  those  non-support  cases  in  which  the  charge 
is  misdemeanor  under  Section  482  of  the  Penal  Law,  of  which  there 
are  a considerable  number,  but  must  bind  them  over  to  the  Court  of 
Special  Sessions  for  final  action.  This  restricts  the  control  of  the 
Court  over  these  cases,  and  interferes  with  the  best  results. 

Further  than  this,  because  a disorderly  person  is  only  a quasi- 
criminal,  the  Court  is  unable,  in  most  of  the  cases  which  come  before 
it,  to  reach  the  offender  if  he  has  gone,  or  afterwards  goes,  out  of 
the  state,  which  it  is  so  easy  for  him  to  do  on  account  of  the  geo- 
graphical position  of  New  York  City.  So  far  as  the  merits  of  the 
case  or  the  proper  action  of  the  Court  is  concerned,  it  is  really  imma- 
terial whether  the  man  complained  of  is  in  Tarrytown  or  Jersey  City, 
and  the  Court  ought  to  be  put  in  position  where  it  can  reach  him  and 
deal  properly  with  him  in  either  case. 

CHICAGO 

Possibly  under  the  influence  of  what  had  been  done  in  Buffalo 
and  New  York  City,  a Domestic  Relations  Court  was  established  as 
part  of  the  Municipal  Court  of  Chicago  in  Branch  8,  under  general 
order  No.  44  of  the  Chief  Justice  dated  March  14,  1911.  By  a 
further  order  the  Court  was  given  jurisdiction  over  all  violations  in 
certain  city  ordinances  relating  to  offenses  in  connection  with  minors, 
and  also  of  violations  of  certain  state  laws  relating  to  desertion,  con- 
tributory dependency  or  delinquency,  and  some  others.  The  Court 
began  operations  on  April  3,  1911,  and  the  record  for  the  remainder 
of  the  month  shows  a total  of  215  cases  which  originated  in  the 
Court  or  were  transferred  from  criminal  branches,  of  which  122  were 
disposed  of,  leaving  ninety-three  pending.  Of  these  cases  ninety, 
or  nearly  forty  per  cent,  were  for  abandonment  of  wife  or  child,  and 
forty-six  for  contributory  dependency  or  delinquency.  The  Court 
does  not  have  jurisdiction  in  certain  cases  involving  cruelty,  drunken- 
ness or  disorderly  conduct  as  related  to  husband  and  wife. 

At  the  end  of  the  first  month  Judge  Goodnow  said  that  the  Court 
had  so  far  met  their  expectations,  but  added  that  they  were  just 
reaching  the  point  where  they  were  beginning  the  “follow-up”  work 
in  wife  abandonment  cases.  By  this  was  meant  a systematic  effort, 
through  influences  which  might  properly  be  brought  to  bear,  to  secure 
compliance  with  the  orders  of  the  Court  or  to  effect  a reconciliation 


14 


of  the  husband  with  the  family.  While  the  time  has  not  been  suffi- 
cient to  reach  any  conclusions  as  to  the  effectiveness  of  this  work,  the 
plan  is  excellent,  and  with  the  appreciative  interest  taken  by  the  judge 
in  charge  of  the  Court  there  is  no  doubt  but  that  it  will  be  successful. 

The  account  given  of  these  Domestic  Relations  Courts,  in  which 
judges  specially  interested  in  the  subject  are  dealing  in  a compre- 
hensive, consistent  and  intelligent  manner  with  cases  of  non-support, 
with  the  definite  purpose,  not  so  much  of  punishing  the  offender  as 
of  preserving  or  restoring  the  normal  condition  of  the  family  and 
securing,  without  punishment,  results  which  discriminate  punish- 
ment, no  matter  how  severe,  could  not  possibly  obtain,  furnishes  the 
strongest  evidence  of  a growing  realization  not  only  of  the  great 
importance  of  this  subject,  but  also  of  the  particular  difficulties  con- 
nected with  it,  which  have  been  found  so  perplexing  when  the  cases 
were  mixed  with  ordinary  criminal  cases,  which  are  all  of  such  a 
different  nature. 

To  give  the  Domestic  Relations  Courts  in  Buffalo  and  New  York 
City  complete  jurisdiction  over  all  cases  of  failure  to  support  wife  or 
children,  whether  accompanied  by  abandonment  or  not,  would  be 
a logical  and  reasonable  development  of  the  present  situation.  The 
Domestic  Relations  Court  in  Chicago,  under  the  law  of  Illinois,  where 
the  offense  is  a misdemeanor,  has  such  jurisdiction  and  can  reach 
deserters  in  other  states.  The  situation  in  New  York  State  is  quite 
different,  because  the  charge  in  the  cases  of  which  the  Domestic  Rela- 
tions Court  in  New  York  City  has  complete  jurisdiction,  and  which  is 
the  only  one  which  includes  non-support  of  the  wife,  is  only  quasi- 
criminal,  and  therefore  not  extraditable.  Under  Section  482  of  the 
Penal  Law  non-support  of  children  is  a misdemeanor,  which  is  an 
extraditable  offense,  but  in  these  cases  the  Domestic  Relations  Court 
in  New  York  City  can  only  bind  the  defendant  over  to  the  Court  of 
Special  Sessions  for  trial,  in  case  he  does  not  plead  guilty  or  agree 
to  obey  the  order  of  the  magistrate  in  the  Domestic  Relations  Court. 
Some  exceptions  have  already  been  made  to  the  provision  of  the 
Greater  New  York  Charter  which  gives  exclusive  jurisdiction  of 
misdemeanors  to  the  Court  of  Special  Sessions,  permitting  magistrates 
to  dispose  of  them.  If  a further  exception  could  be  made  as  to  non- 
support cases,  and  the  Domestic  Relations  Courts  in  New  York  were 
given  jurisdiction  over  this  class  of  misdemeanors  as  a judge  of  the 
Domestic  Relations  Court  in  Buffalo  has  in  all  classes  of  misdemeanor, 
it  would  give  the  Domestic  Relations  Courts  in  New  York  better  con- 
trol of  them  and  relieve  the  Court  of  Special  Sessions  to  this  extent. 


15 


There  is  no  apparent  reason  why  non-support,  which  now  subjects 
a man  to  the  charge  of  being  a disorderly  person,  should  not  be  made 
a misdemeanor,  and  so  a crime,  as  it  actually  is,  leaving  the  jurisdiction 
in  these  cases  relating  to  non-support,  above  spoken  of,  in  the  Court 
of  Domestic  Relations,  where  it  now  is,  thus  giving  the  Domestic 
Relations  Courts  in  Buffalo  and  New  York  City  jurisdiction  of  all 
non-support  cases  under  the  charge  of  misdemeanor. 

This  would  clarify  the  present  situation  in  New  York  City  and 
would  further  carry  out  the  idea  of  the  Page  Commission  by  putting 
the  complete  responsibility  for  all  these  cases  in  one  Court  specially 
constituted  for  them. 

SOME  GENERAL  CONSIDERATIONS 
The  Grade  of  the  Offense 

A careful  consideration  of  all  the  facts  brought  out  indicates 
that  the  offense  should  be  misdemeanor,  and  not  felony.  There  are 
only  two  reasons  for  raising  the  offense  to  felony,  the  desire  to  be  able 
to  reach  deserters  in  other  states,  and  an  impulse  to  inflict  a severe 
punishment  in  order  to  more  effectually  repress  the  evil.  The  first 
of  these  is  much  the  more  influential,  but  is  wholly  without  foundation, 
while  the  other  is  only  partly  so. 

It  is  because  the  widespread,  but  entirely  mistaken,  impression 
that  extradition  under  a misdemeanor  charge  is  impossible  has  done 
so  much  to  protect  deserters,  and  because  I have  recently  had  letters 
from  men  in  almost  every  state  which  has  made  the  offense  felony  in 
the  last  five  years,  congratulating  themselves  that  they  can  now  do 
just  what  they  could  have  done  before,  and  because  those  in  other 
states  where  the  offense  is  misdemeanor  write  me  that  they  have  not 

i 

been  able  to  extradite  anybody  because  the  offense  is  not  felony,  that 
I want  to  make  this  point  perfectly  clear. 

The  right  of  extradition  is  conferred  by  the  Constitution  of  the 
United  States  (Art.  IV,  Sec.  2),  which  says: 

“A  person  charged  in  any  state  with  treason,  felony,  or  other  crime, 
who  shall  flee  from  justice,  and  he  found  in  another  state,  shall,  on  demand 
of  the  executive  authority  of  the  state  from  which  he  fled,  be  delivered 
up,  to  be  removed  to  the  state  having  jurisdiction  of  the  crime.  ' 

It  is  confirmed  by  the  Act  of  Congress,  February  12,  1793,  which 
declares  it  to  be  the  duty  of  the  executive  authority  of  the  state  on 
which  the  demand  is  made  to  cause  the  fugitive  to  be  delivered  up ; 
and  by  the  decision  of  the  Supreme  Court  of  the  United  States  more 


16 


than  fifty  years  ago  (24  Howard,  U.  S.  66),  which  states  distinctly, 
in  reference  to  the  words  “treason,  felony  or  other  crime,”  that 

“The  word  ‘crime’  of  itself  includes  every  offense,  from  the  highest 
to  the  lowest  in  the  grade  of  offenses,  and  includes  what  are  called  ‘mis- 
demeanors’ as  well  as  treason  and  felony.” 

The  law  and  the  decision  cannot  be  plainer  than  they  are.  There 
has  been  nothing  since  to  conflict  with  them  in  any  way,  but,  on  the 
contrary,  every  decision  of  every  Court  has  confirmed  them.  The 
right  to  demand,  and  the  duty  to  deliver,  a fugitive  charged  with  mis- 
demeanor are  conferred  and  imposed  by  the  Constitution  of  the  United 
States  and  cannot  be  abridged  or  abrogated  by  any  authority  in  any 
state. 

The  contrary  impression  is  probably  due  to  the  fact,  not  only  that 
local  authorities  do  not  care  ordinarily  to  go  to  the  expense  of  bring- 
ing back  minor  offenders,  but  also  to  the  fact  that  Governors  dis- 
courage extradition  for  petty  crimes,  in  accordance  with  the  resolution 
adopted  at  the  Conference  of  Governors  on  Inter-State  Extradition, 
which  was  held  in  New  York  City  in  1887. 

This  Conference  was  called  by  Governor  Hill  to  consider  the 
general  subject  of  extradition,  and  to  arrive  at  some  general  under- 
standing on  account  of  certain  differences  in  practice  and  misunder- 
standings which  had  developed.  It  was  made  up  of  a.  Justice  of  the 
Supreme  Court  of  the  District  of  Columbia  and  the  Governors,  or  their 
representatives,  from  nineteen  states.  After  full  discussion  it  drew 
up  a set  of  rules  governing  applications  for  requisitions,  which  were 
recommended  to  all  the  states  and  which  are  still  quite  closely  fol- 
lowed. They  are  printed  on  the  back  of  the  application  for  a requisi- 
tion in  many  states. 

Several  proposals  were  made  to  agree  to  a rule  not  to  grant 
requisitions  for  certain  misdemeanors,  but  it  was  suggested  that  it  was 
hardly  becoming  for  the  members  to  make  a public  declaration  that 
they  intended  to  violate  the  Constitution.  The  conclusion  arrived  at 
is  expressed  in  the  following  resolution,  which  was  finally  adopted : 

“Resolved,  That  it  is  the  sense  of  this'  conference  that  the  governors 
of  the  demanding  states  discourage  proceedings  for  the  extradition  of 
persons  charged  with  petty  offenses ; and  that  except  in  special  cases, 
under  aggravating  circumstances,  no  demand  shall  be  made  in  such  cases.” 

It  will  be  seen  from  this  that  the  Conference  distinctly  refused 
to  make  a rule  which  would  hinder  any  Governor  from  granting  a 
requisition  for  a misdemeanor,  or  for  a criminal  offense  of  any  degree. 
The  question,  in  any  particular  case,  depends  on  public  policy,  for  the 


17 


right  to  demand,  and  the  duty  of  the  Governor  on  whom  the  demand 
is  made  to  grant,  are  unquestioned.* 

But  it  is  sometimes  urged  that,  although  this  is  true,  it  is  prac- 
tically impossible,  because  Governors  will  not  honor  requisitions  for 
misdemeanor.  The  world  is  full  of  people  who  do  not  like  things 
which  they  have  never  tasted,  and  the  people  who  are  most  certain 
that  extradition  for  misdemeanor  is  impossible  are  those  who  have 
never  attempted  it.  This  point  was  not  clear  to  me  when  I published 
a study  of  the  family  desertion  and  non-support  laws  six  years  ago, 
and  the  alternative  of  felony  was  there  given,  with  the  suggestion 
that,  if  needed  to  make  the  way  to  extradition  any  plainer  or  easier, 
the  offense  should  be  made  felony.  So  far  as  this  opinion,  which  I 
have  ever  since  done  my  best  to  correct,  has  had  any  influence  in  the 
passage  of  felony  laws,  I desire  to  express  my  sincere  regret  for  it, 
because  the  way  to  extradition  cannot  be  made  any  plainer  than  it 
has  been  and  is  now  under  any  misdemeanor  statute. 

For  more  than  six  years  I have  diligently  watched  for  any 
instance  in  which  any  Governor  has  refused  to  grant  a requisition  for 
a deserter  because  the  offense  was  misdemeanor  instead  of  felony,  or 
to  honor  such  a requisition  when  granted,  and  I have  not  been  able 
to  find  a single  one.  I went  to  interview  Governor  Pennypacker,  of 
Pennsylvania,  in  1906,  about  his  refusal  to  honor  a demand  for  a 
deserter  charged  with  misdemeanor,  and  found  his  only  objection  was 
that  the  papers  were  not  regular.  I have  since  discovered  that  just 
after  the  enactment  of  the  Pennsylvania  misdemeanor  law  of  1903 
he  was  advised  by  an  opinion  of  the  Attorney  General  (28  Pa.  Co.  Cts., 
379)  that  requisitions  for  deserters  under  the  law  should  be  granted, 
as  they  have  been  ever  since. 

The  following  table  shows  the  total  requisitions,  and  the  number 
of  requisitions  for  deserters  included  in  these,  in  each  state  from 
which  it  was  possible  to  obtain  reports  for  the  five  years  from  1906 
to  1910,  inclusive : 


*The  granting  of  a requisition  for  a fugitive  criminal  depends  on  the  executive 
authority  of  the  governor.  The  legislature  cannot  confer  or  withhold  this  authority,  nor  can 
it  or  the  courts  interfere  with  the  executive  in  the  exercise  of  it;  but  the  obligation  which 
the  constitution  of  a state  imposes  on  the  governor  to  see  that  the  laws  of  the  state  are 
faithfully  executed  makes  it  his  duty  to  exercise  the  power  given  him  to  bring  back  those 
who  transgress  these  laws,  whether  the  charge  is  misdemeanor  or  felony  (State  vs.  Hudson, 
2 N.  P.  1,  Ohio,  1893,  confirmed  by  Supr.  Court  Ohio,  52  O.  S.  673,  1895);  and  the  duty  to 
deliver  a fugitive  implies  a corresponding  right  and  duty  on  the  part  of  the  governor  of  the 
state  from  which  he  fled  to  demand  his  surrender  (Work  vs.  Corrington,  34  O.  S.  64,  1877). 

While,  therefore,  a governor  has  a certain  discretion,  it  seems  to  be  his  duty  not  to 
refuse,  for  any  insufficient  or  arbitrary  reason,  a requisition  which  has  been  properly  applied 
for,  which  he  has  the  right  to  grant,  and  which  will  promote  the  enforcement  of  the  laws  of 
the  state,  as  requisitions  for  family  deserters,  whether  the  charge  is  felony  or  misdemeanor, 
certainly  do. 


18 


Extraditions — 1906-1910 


Total  Requisitions 

Requisitions  for  Deserters 
5 Years  Included 


Offense 


Colorado 

135 

3 

Connecticut 

130 

6 

Delaware 

47 

2 

Georgia 

732 

13 

Illinois 

1370 

128 

Indiana 

409 

66 

Iowa 

417 

47 

Kansas 

287 

5 

Kentucky 

431 

1 

Massachusetts 

276 

13 

Maryland 

160 

1 

Mississippi 

615 

0 

Montana 

75 

2 

Nebraska 

214 

24 

New  Jersey 

711 

120 

New  Mexico 

48 

0 

New  Hampshire 

12 

0 

New  York 

666 

122 

No.  Carolina 

228 

10 

Ohio 

534 

145 

Pennsylvania 

728 

68 

Vermont 

46 

0 

Washington 

160 

18 

Wisconsin 

205 

43 

Wyoming 

46 

0 

Misdemeanor 

Felony  (Other  crime  in  2 of  the  6) 

Misdemeanor 

66 

a 

(Misdemeanor  to  Feb.  23,  ’07 — 1 
■\  Felony  after  Feb.  23,  07 — 65 

| 66 
f Misdemeanor  to  Mch.  28,  ’07 
I Felony  after  Mch.  28,  ’07 
[ (All  after  Mch.  26,  ’08) 
Misdemeanor 

“ (All  since  Nov.  13,  ’08) 
66 

66 

66 

Felony 

Misdemeanor 

i 6 
66 

Felony 

Misdemeanor 

Felony 

Misdemeanor 

66 

\ Misdemeanor  to  Mch.  1,  ’07 
( Felony  after  Mch.  1,  ’07 
Felony 
Misdemeanor 


The  state  which  issued  the  largest  number  of  requisitions  for 
deserters  during  the  five  years  1906  to  1910,  inclusive,  was  Ohio, 
with  145,  and  next  to  this  came,  not  the  Empire  State,  nor  any  other 
which  had  strengthened  the  popular  error  by  enacting  a felony  law, 
but  Illinois,  with  128,  on  the  charge  of  misdemeanor.  New  York 
was  next,  with  122,  of  which  sixty-four  applications,  more  than  half, 
were  from  New  York  City  and  seventeen  from  Buffalo.  This  is 
attributed  in  New  York  to  the  enactment  of  the  felony  law,  but 
New  Jersey,  but  little  more  than  one-fourth  as  large  and  with  only  a 
misdemeanor  law,  issued  120,  only  two  less,  in  the  same  time.  Fol- 
lowing this,  with  a wide  interval,  was  Pennsylvania,  with  sixty-eight, 
of  which  thirty-two  were  on  applications  from  Philadelphia,  fifteen 
from  York,  and  the  remainder  from  a dozen  other  countries,  but  not 
one  from  Pittsburgh. 

Next  was  Indiana,  with  sixty-six,  all  but  one  in  three  years  and 
ten  months  under  the  felony  law,  and  after  it  Iowa,  with  forty-seven 
in  the  same  portion  of  the  time,  Wisconsin  with  forty-three,  Nebraska 
twenty-four  and  Washington  eighteen.  In  Massachusetts  no  effort 


19 


was  made  to  reach  a deserter  for  some  time  before  the  period  in  ques- 
tion, nor  until  about  two  years  and  a half  ago-.  Since  then  thirteen 
have  been  brought  back,  without  any  trouble,  and  there  were  the  same 
number  in  Georgia  during  the  five  years. 

The  Comparative  Number  of  Requisitions 

The  following  table  shows  the  number  of  requisitions  in  each 
year  in  the  ten  states  having  the  largest  number  for  the  five  years, 
the  initial  indicating  in  each  case  whether  the  offense  was  felony  or 
misdemeanor : 


NUMBER  OE  REQUISITIONS  FOR  DESERTERS  EACH  YEAR 


Ohio 

111. 

N.  Y. 

N.  J. 

Pa. 

Ind. 

la. 

Wis. 

Neb. 

Wash. 

F. 

M. 

F. 

M. 

M. 

F. 

F. 

F. 

F. 

F. 

1906 

21 

21 

20 

6 

6 

1 

8 

7 

1907 

18 

22 

30 

15 

16 

12 

13 

4 

1 

1908 

24 

20 

19 

32 

17 

21 

6 

6 

5 

5 

1909 

35 

30 

22 

27 

16 

21 

13 

5 

5 

3 

1910 

47 

35 

31 

40 

13 

11 

28 

11 

3 

9 

145 

128 

122 

120 

68 

66 

47 

43 

24 

18 

These  figures  cannot  be  properly  compared  without  taking  into 
account  the  size  of  the  states  to  which  they  refer  and  the  conditions 
prevailing  in  each.  It  is  not  possible  to  determine  the  total  number 
of  deserters  from  each,  but  a comparison  on  the  basis  of  relative 
population  is  made  in  the  following  table,  which  gives,  with  the 
actual  number,  the  number  which  this  rate  for  the  time  after  the 
offense  was  made  felony  would  make  in  five  years,  and  the  rate  per 
hundred  thousand  of  population.  It  is  worthy  of  notice  that  the  state 
in  which  the  largest  number  of  requisitions  were  issued  in  proportion 
to  the  population  is  only  a misdemeanor  state. 

RATIO  OE  REQUISITIONS  FOR  DESERTION  TO  POPULATION 
Total  Req.  Would  be  in  Per  100,000 


1 )eserters 

Period 

five  yrs. 

Pop.  1910 

pop. 

Law 

N.  J. 

120 

5 yrs. 

120 

2,537,167 

4.8 

M 

Ind. 

66 

3 yrs.  10  ms.* 

84 

2,700,876 

3.1 

F 

Ohio 

145 

5 yrs. 

1 45 

4,767,121 

3.0 

F 

la. 

47 

3 yrs.  9 ms.* 

63 

2,224,771 

2.9 

F 

Ills. 

128 

5 yrs. 

3 28 

5,638,591 

2.3 

M 

Wash. 

18 

3 yrs.  10  ms.* 

23 

1,141,990 

2.0 

F 

Wise. 

43 

5 yrs. 

43 

2,333,860 

1.9 

F 

Neb. 

21 

5 yrs. 

21 

1,192,214 

1.8 

F 

N.  Y. 

122 

5 yrs'. 

122 

9,113,614 

1.3 

F 

Pa. 

68 

5 yrs. 

68 

7,665,111 

.9 

M 

*After 

making  the 

offense  felony. 

These 

facts  need  no  argument. 

Whatever  other  reasons 

there 

may  be  for 

enacting  felony  laws,  those  who 

seek  to  pass  them  for 

20 


facilitating  extradition  are  not  only  wasting  their  energy,  but  mis- 
leading others,  and  helping  to  protect  deserters. 

The  only  real  trouble  is  the  expense,  and  that  is  found  under  a 
felony  law  also,  as  it  is  in  California  to-day,  where  applications  for 
requisition  will  not  be  made  by  the  prosecuting  attorney  unless  some 
one  puts  up  the  money ; in  Connecticut,  where  the  state’s  attorney 
» in  one  city  will  not  extradite  anyone  because  he  thinks  such  a use  of 

public  funds  questionable,  and  in  Maine,  where  the  first  application 
for  a deserter  under  the  felony  law  met  with  objection  on  account 
* of  the  cost. 

Objections  to  Felony 

On  the  other  hand,  there  are  good  reasons  why  the  offense  should 
not  be  made  felony.  The  situation  is  not  one  which  calls  for  artillery, 
for  there  are  women  and  children  in  the  crowd  on  whom  it  is  pro- 
posed to  fire,  but  for  sharpshooters,  who  can  pick  off  the  offenders 
without  hurting  the  helpless. 

a.  The  severity  of  the  law  hinders  prosecutions.  It  is  reported 
from  Indiana  and  from  Iowa  that  wives  change  their  minds*  and  in 
California  the  same  experience  has  seriously  interfered  with  the  execu- 
tion of  the  law.  The  Humane  Society  of  San  Francisco  writes  that 
it  is  annoying  to  be  obliged  to  charge  people  with  felony,  when  the 
offense  is  not  of  the  state  prison  order. 

And  why  should  the  wives  prosecute  under  such  circumstances? 
Should  prosecuting  officers,  in  their  zeal  to  punish,  be  surprised  that 
the  one  on  whom  they  depend  mainly  for  the  evidence  should  not  be 
wholly  oblivious  to  the  other  aspect  of  the  situation  ? 

The  number  of  commitments  to  the  state  prison  or  state  reforma- 
tory, in  the  thirteen  states  having  felony  laws,  is  shown  by  the  fol- 
lowing table,  which  gives  the  date  of  the  law  in  those  states  in  which 
it  was  not  in  operation  for  the  whole  five  years,  and  the  average 
length  of  the  sentence  when  it  could  be  ascertained. 


COMMITMENTS  TO  STATE  PRISON  OR  STATE  REFORMATORY  FOR  DESERTION 

OR  NON-SUPPORT,  1906-1910. 


Date  of 
Felony 
Law 

Prior  to  Beginning 
of  Period 

Mar. 

1 o, 

1909 

Feb. 

25, 

1907 

Mar. 

26, 

1907 

Apr. 

1, 

1909' 

June 

4, 

1909 

Mar. 

23, 

1907 

Mar. 

1 1 , 

1907 

State: 

Conn. 

Mich. 

N.Y. 

Neb. 

O. 

Wise. 

Cal. 

Ind. 

la. 

Me. 

Mo  . 

Utah 

Wash. 

1906 

2 

15 

3 

1907 

5 

16 

10 

1 

1908 

2 

17 

16 

8 

• 

3 

1909 

9 

16 

13 

12 

2 

1 

1910 

8 

14 

18 

5 

5 

3 

1 

Total 

none 

33* 

26 

5* 

78 

60 

5 

25 

5 

none 

t 

f 

6 

Average  length  of  sentence  2 yrs.  1 yr.  2 yrs.  1 yr. 


* Years  not  stated  separately, 
t No  report. 


21 


No  doubt  many  of  these  men  deserved  the  punishment  they 
received,  and  the  number  is  small  compared  with  the  number  of 
cases  which  must  have  been  involved ; but  the  number  in  Ohio  repre- 
sents 156  years  of  confinement,  and,  though  some  of  these  men  may 
have  been  paroled  before  the  end  of  the  term,  such  sentences,  from 
the  standpoint  of  the  family,  seem  too  hard.  The  clang  of  the  prison 
door,  as  it  closed  on  nearly  100  of  these  men  for  two  years,  may  have 
announced  to  society  that  it  had  done  a righteous  act  in  imposing  a 
just  punishment,  but  it  brought  no  joy  to  the  wife,  left  alone  with 
her  children,  and  she  cannot  be  blamed  for  faltering  instead  of  assist- 
ing society  to  prolong  the  desertion,  and  make  the  non-support  com- 
plete. One  is  reminded  of  the  pedagogue,  who  was  so  indignant  at 
finding  two  boys  fighting  that  he  flogged  them  both  for  an  example. 

Lack  of  Power  Weakens  Procedure 

b.  Cases  are  usually  begun  before  a magistrate,  and  often  do 
not  get  further,  because  the  man  is  released  on  a bond  or  promise 
to  support.  The  disadvantage  of  the  situation  is  that  the  lower  Court 
has  no  power  to  punish,  and  can  only  threaten  to  bind  over  for  severe 
treatment,  instead  of  giving  the  man  the  alternative  of  immediate 
imprisonment  with  hard  labor  if  he  does  not  at  once  change  his  course. 
In  order  to  overcome  this  difficulty,  in  a felony  law  recently  passed 
in  Colorado,  the  justice  is  given  power  to  impose  imprisonment  for 
three  months  as  one  of  the  conditions  of  a suspended  sentence,  which 
seems  so  much  like  a real  sentence  as  to  remind  one  of  the  man  who 
took  a nap  before  he  went  to  sleep.  How  much  better  for  the  lower 
Court  to  have  power,  as  it  might  under  a misdemeanor  statute,  to 
render  final  judgment  and  impose  an  adequate  sentence,  which  it 
could  suspend  as  soon  as  it  had  had  the  desired  effect? 

In  such  a case  in  Ohio  the  Juvenile  Court  can  inflict  a sentence  of 
a year,  with  a fine  of  $500,  which  must  be  worked  out  at  sixty  cents 
per  day,  making  nearly  three  years  and  a half  in  all.  No  Court  needs 
anything  more  severe  than  that. 

Conviction  Not  So  £asy 

c.  If  the  case  reaches  the  higher  Courts  as  felony,  juries  are 
apt  not  to  convict.  There  have  been,  of  course,  many  convictions  in 
Ohio  and  Wisconsin,  but  a record  of  the  sixteen  cases  actually  brought 
to  trial  in  Oakland,  Cal.,  last  year  shows  that  in  five  of  them  the  man 
was  found  not  guilty — left  to  go  absolutely  free.  I have  not  found  so 
large  a percentage  of  acquittals  under  any  misdemeanor  law.  The 
probation  officer  of  a city  in  Iowa  writes : 


“Our  law  is  too  drastic.  If  the  offense  were  a misdemeanor  and 
could  be  punished  by  the  magistrate  direct,  more  offending  husbands 
would  be  sent  to  jail.” 

A letter  written  last  November  from  a town  in  Wisconsin,  in 
which  there  had  been  100  cases  of  family  desertion  in  the  preceding 
two  years,  to  find  out  whether  there  was  not  some  better  law  than 
the  felony  statute  under  which  the  state  has  been  working  for  many 
years,,  said : 

“We  have  a law  which  punishes  for  this  crime  very  severely,  a term 
in  the  penitentiary,  but  it  seems  almost  impossible  to  get  a conviction. 
The  wife,  of  course,  knowing  the  facts,  will,  as  a rule,  not  testify  and  the 
prosecuting  officers  have  grown  weary  of  attempting  to  convict.” 

Some  instances  of  this  kind  will  occur  under  any  law,  but  these 
are  the  opinions  of  men  who  are  interested  only  in  getting  the  best 
results.  The  Humane  Society  of  San  Francisco  further  says:  “The 
machinery  is  too  big  for  the  material  handled.” 

So  said  Attorney  General  Mayer,  of  New  York,  six  years  ago 
when  the  District  law  was  under  consideration,  and  this  opinion  was 
confirmed  by  the  District  Attorney  of  New  York  City.  Since  then 
an  even  higher  authority  has  said  that  the  offense  ought  not  to  by 
felony.  During  the  last  two  years  Judge  Mayer  has  had  occasion  to 
review  the  situation  as  attorney  for  the  Page  Commission,  for  which 
he  drew  the  report,  and,  in  reply  to  a question  as  to  whether  he  still 
thought  family  desertion  and  non-support  should  be  made  a misde- 
meanor and  not  a felony,  he  wrote,  on  May  22,  1911  : 

“I  have  not  changed  my  view  on  this  subject  and,  indeed,  am  more 
confirmed  in  it  than  ever.” 

Possible  Changes  in  New  York 

Nothwithstanding  the  fact  that  extradition  for  non-support  under 
the  misdemeanor  statute  in  New  York  has  for  many  years  been  pos- 
sible, no  efifort  was  made  to  bring  back  deserters  from  other  states 
under  it,  and  all  the  extraditions  which  have  taken  place  have  been 
under  the  felony  statute  of  1905,  under  which  cases  must  be  tried  in 
the  General  Sessions  Court.  As  has  been  already  explained,  not  more 
than  ten  per  cent  of  the  complaints  made  under  this  charge  result  in 
extraditions  or  trials,  but  if  the  extradition  could  be  made  under  the 
charge  of  misdemeanor,  the  offender,  on  his  return,  might  be  tried 
in  the  Domestic  Relations  Court  and  punished  by  imprisonment  in 
the  penitentiary  up  to  o,ne  year,  which  seems  sufficiently  severe,  and 
was  equalled  in  only  one  case  of  the  eleven  men  sent  to  the  peni- 
tentiary by  the  General  Sessions  Court  out  of  the  twenty-eight  who 


23 


were  sentenced  to  imprisonment  by  that  Court  during  the  last  five 
years.  The  average  sentence  of  these  eleven  men  in  the  Court  of 
General  Sessions  was  seven  months  and  twenty-seven  days,  so  that  the 
Domestic  Relations  Court  would  be  able  to  deal  as  severely  with 
offenders  brought  back  to  it,  and  on  account  of  their  experience  in 
dealing  with  such  cases  the  judges  of  the  Domestic  Relations  Court 
should  be  better  qualified  to  judge  as  to  the  wisdom  of  going  to  the 
expense  and  trouble  of  extradition  in  any  given  case,  and  would  no 
doubt  be  able  to  dispose  of  a large  number  of  the  complaints  which 
now  come  to  the  office  of  the  District  Attorney.  He  would  still  have 
the  same  opportunity  as  now  to  investigate  all  which  might  come  to 
him,  and  to  throw  out  all  those  in  which  he  did  not  find  extradition 
proceedings  warranted. 

It  seems  probable  that  these  modifications  of  the  present  laws, 
which  would  cause  no  very  great  change  in  the  present  work  of  the 
Domestic  Relations  Court,  would  not  only  lessen  the  expense  by 
putting  the  cases  into  a Court  in  which  the  costs  are  less,  but  would 
also  get  at  least  as  good  results,  while  relieving  the  crowded  General 
Sessions  Court  of  cases  for  which  it  is  not  specially  fitted. 

National  Desertion  Bureau 

A noteworthy  development  as  to  extradition  has  taken  place  in 
connection  with  the  United  Hebrew  Charities  of  New  York,  which  did 
so  much  in  this  direction  after  the  passage  of  the  felony  law  in  1905. 
Partly  as  the  result  of  a report  on  abandonment  made  by  Morris  D. 
Waldman,  at  the  Conference  of  Jewish  Charities  in  St.  Louis  in  May, 
1910,  they  established  a bureau  in  charge  of  a skillful  attorney,  who 
succeeded  in  locating,  in  nine  months,  174  deserters,  or  about  seventy 
per  cent,  out  of  249  which  were  brought  to  his  attention.  Encouraged 
by  this  success  the  National  Desertion  Bureau  was  formed,  on  Febru- 
ary 1,  with  headquarters  in  the  United  Hebrew  Charities  Building, 
in  New  York.  With  this  the  members  of  the  Jewish  Conference  in 
all  parts  of  the  country  co-operate.  Portraits  or  minute  descriptions 
of  missing  men  appear  each  week  in  the  Jewish  publication  in  New 
York,  and  are  sent  to  any  friends  of  the  deserters  who  are  likely  to 
influence  them  to  return  without  resorting  to  the  law.  This  machinery 
has  been  very  successful,  and  interesting  instances  might  be  related 
of  quick  discovery  and  satisfactory  results.  Up  to  May  15  last  135 
men  had  been  catalogued. 

There  is  no  reason  why  those  in  states  .where  the  offense  is  only 
a misdemeanor  should  not  participate  in  this  excellent  scheme  for 
reaching  men  who  are  avoiding  their  family  duties. 


24 


Misdemeanor  Laws  Also  in  Felony  States 

It  should  be  remembered  also  that  Ohio,  New  York  and  Indiana, 
which  have  felony  laws  and  which  stand  in  the  first  rank  as  to  their 
efforts  in  dealing  with  this  evil,  as  well  as  Michigan,  also  have  laws 
making  the  offense  a misdemeanor  or  a quasi-crime,  and  that  it  is 
under  these  laws  that  all  but  a small  proportion  of  the  prosecutions 
are  carried  on.  In  response  to  a question  put  to  an  attorney  in  Ohio, 
who  has  had  more  than  ten  years’  successful  experience  in  handling 
such  cases,  as  to  whether  they  could  secure  as  good  results  under  a 
felony  law  alone,  he  replied : “We  could  not  handle  them  at  all.” 

The  situation  as  to  these  states,  therefore,  recalls  the  incident  of 
the  kind-hearted  man  who,  in  building  a barn,  cut  a small  hole  for 
the  little  cat  and  a large  hole  for  the  big  cat,  to  be  used  in  getting* 
in  and  out ; and  it  is  certainly  not  worth  while,  after  the  structures 
of  statehood  have  been  erected  and  the  means  of  communication 
between  them  opened,  under  a misdemeanor  charge,  for  more  than 
a hundrd  years  in  such  a way  that  it  can  never  be  closed,  to  cut  an 
additional  hole  in  order  to  reach  deserters  who  can  now  be  secured 
by  any  state  under  a misdemeanor  charge,  without  making  the  offense 
felony. 

Extradition  Not  the  Most  Important  Part 

While  no  law  is  good  which  does  not  permit  of  extradition,  it  is 
much  more  important  that  the  law  should  be  so  framed  that  it  will 
secure  the  best  results  in  ordinary  non-support  cases,  and  in  those 
in  which  it  is  not  necessary  to  go  outside  the  state,  than  it  is  to  have 
it  effective  in  reaching  men  who  desert  to  other  states,  of  which  the 
number  is  relatively  smaller,  and  who  cannot  be  reached  under  any 
charge  without  considerable  trouble  and  expense.  It  is  unfortunate, 
therefore,  that  there  should  be  such  a feeling  that  it  is  necessary  to 
make  the  offense  felony  on  this  account. 

The  extremes  met  in  Pennsylvania  at  the  last  session  of  the 
legislature  when  a committee  from,  the  Associated  Charities  of  Pitts- 
burgh, which  has  made  an.  exhaustive  study  of  the  subject  and  con- 
cluded that  a misdemeanor  statute  was  too  severe  for  that  state,  pre- 
pared a bill  supplementing  the  act  of  1867,  which  does  not  make  the 
offense  a crime  at  all,  and  applies  to  any  husband  and  father,  whether 
the  family  he  leaves  is  in  destitute  circumstances  or  not.  The  directors 
of  the  poor,  meantime,  introduced  a bill  making  the  offense  felony. 
The  supplement  to  the  act  of  1867  was  vigorously  pushed,  but  failed 
to  command  the  support  of  workers  in  other  parts  of  the  state,  and 
neither  bill  was  passed.  In  reply  to  a question  as  to  why  the  felony 


25 


bill  was  introduced,  the  directors  of  the  poor,  who  had  heard  that  the 
felony  law  worked  well  in  another  state,  wrote : 

“We  have  95  cases  where  we  are  compelled  to  help  support  the 
families  of  deserting  husbands,  and  we  have  no  way  to  bring  them  hack 
to  their  families. 

“We  also  have  a number  of  cases  where  the  father  has  deserted  his 
family  and,  going  to  other  states,  gets  work  at  big  wages  and  should  he 
made  to  support  his'  family,  but  we  are  powerless  to  act  under  the  present 
law.” 

In  view  of  the  fact  that  extradition  under  the  law  referred  to  has 
been  going  on  steadily  since  its  enactment  eight  years  ago,  and  nine 
requisitions  were  secured  by  Philadelphia  last  year,  it  is  hard  to  tell 
whether  the  responsibility  for  this  situation  rests  most  heavily  upon 
the  officials,  or  upon  the  committee  which,  with  all  its  investigations, 
has  failed,  apparently,  to  keep  in  touch  with  what  is  going  on  at 
home;  but  the  thought  of  the  ninety-five  deserters  abiding  in  safety 
under  the  felony  bogey,  some  of  whom  at  least  might  be  reached  by 
a little  effort,  makes  one  feel  like  striking  it  down  with  a very  heavy 
club. 


Jury  Trial  Not  Necessary  in  Pennsylvania 

The  objection  of  the  committee  to  a misdemeanor  statute  in 
Pennsylvania  is  that  it  requires  an  indictment  and  jury  trial  in  each 
case ; but  an  examination  of  the  statutes  shows  that  desertion  and  non- 
support, exactly  as  we  know  them  now,  were  covered  by  the  poor 
law  of  1771,  which  antedated  the  Constitution,  with  its  requirements 
as  to  jury  trial;  and  that  the  offense  belonged  to  a class  of  minor 
crimes,  like  pocket-picking,  thieving,  vagrancy  and  disorderly  conduct, 
which  have  been,  at  least  since  the  enactment  of  a law  more  than  300 
years  ago  in  the  time  of  James  I,  subject  to  summary  jurisdiction  by 
a magistrate,  without  a jury  trial.  There  is  no  reason  why  a man 
charged  with  non-support  or  desertion  in  Pennsylvania  should  be 
tried  by  a jury  now,  so  far  as  the  constitutional  provisions  are  con- 
cerned, even  though  the  legislature  sees  fit  to  call  the  offense  by  a 
different  name  and  make  the  punishment  somewhat  more  severe, 
because  it  was  not  entitled  to  a jury  trial  when  the  Constitution  was 
adopted.  Such  changes  the  legislature  has  a right  to  make;  and  if  a 
provision  were  added  granting  a jury  trial,  if  demanded,  it  would  no 
doubt  be  possible  to  try  almost  all  the  cases  without  a jury,  as  under 
the  present  law,  and  as  in  other  states,  and  also  to  go  after  such 
deserters  in  other  states  as  those  above  referred  to. 


26 


Other  Important  Points 


Further  points  which  seem  clear  are: 

1.  The  case  when  brought  should  be  heard  in  a Court  specially 
devoted  to  the  subject  of  family  relations,  rather  than  to  other  crimes 
or  property  interests,  whenever  it  is  possible  by  any  adjustment  of 
k the  judicial  machinery  to  arrange  for  this. 

The  Domestic  Relations'  Courts  of  Buffalo,  New  York  and 
Chicago  above  referred  to,  which  are  a development  of  the  last 
j eighteen  months,  are  the  outgrowth  of  an  increasing  appreciation  of 

the  fundamental  importance  of  intelligent  and  consistent  treatment  of 
the  economic  and  moral  conditions  of  family  life  by  a judge  who  can 
consider  all  the  facts  in  their  relations  to  each  other,  and  by  a deliber- 
ate course,  while  in  intimate  contact  with  them,  can  secure  results 
which  are  not  possible  with  a judge  who  gets  but  one  view  of  a com- 
plicated group  of  facts,  and  is  obliged  to  decide  offhand  just  what 
shall  be  done,  without  the  opportunity  to  discover  how  far  the  diffi- 
culties would  yield,  or  perhaps  disappear  altogether,  under  proper 
treatment.  The  most  skillful  physician  is  apt  to  make  mistakes  if 
limited  to  a single  consultation,  and,  in  any  event,  cannot  prescribe 
infallibly  a course  of  treatment  which  later  developments,  if  he  were 
able  to  observe  them,  might  prove  to  be  wrong  even  in  his  judgment. 

If  the  volume  of  work  connected  with  this  subject  is  not  sufficient 
to  occupy  the  whole  time  of  a Court,  it  should  be  arranged  that  all 
non-support  and  desertion  cases  shall  be  heard  by  the  same  Court, 
and,  if  possible,  at  stated  times  in  separate  sessions,  as  was  arranged 
by  Judge  Nash,  of  Buffalo,  in  March,  1909,  letting  the  Court  occupy 
the  remainder  of  the  time  with  whatever  work  seems  advisable.  Such 
an  arrangement  must  necessarily  be  made  in  all  except  the  larger 
cities,  and  the  best  association  in  such  a combination  of  duties  seems  to 
be  to  let  the  judge  who  holds  the  Juvenile  Court  preside  also  over 
the  Domestic  Relations  Court.  The  possibility  of  this  will  depend 
upon  local  conditions,  involving  the  present  constitution  of  the  Juvenile 
Court  and  the  other  duties  with  which  the  judge  who  now  holds  the 
Juvenile  Court  is  charged.  The  duties  in  each  are  similar  in  that  they 
involve  the  most  sacred  relations  of  life,  the  happiness  of  the  entire 
family,  and  the  future  welfare,  both  moral  and  material,  of  the 
children,  as  well  as  the  economic  interests  of  the  community.  They 
are,  therefore,  to  be  classed  as  relating  to  persons  and  distinguished 
from  those  relating  to  property,  with  which  the  attention  of  our 
Courts  has  been,  until  recently,  almost  wholly  engrossed.  The  value 
of  any  object  or  any  interest  is  so  commonly  measured  by  what  it  is 
worth  in  dollars  and  cents  that  it  has  been  quite  natural  for  judges,  as 


27 


well  as  other  people,  to  be  impressed  by  the  claims  of  property  and  to 
give  them  preference  accordingly,  because  the  standard  of  value  can 
be  readily  applied  and  is  quickly,  and  often  unconsciously,  used. 

We  have  begun  to  see  the  less  obvious  value  of  that  which  is, 
being  destroyed  by  conditions  which  it  is  possible  to  prevent  or  to 
remedy,  and  to  be  impressed  by  the  cost  to  society,  of  which  each  of 
, us  is  a part,  of  not  giving  proper  attention  to  such  subjects.  A Juvenile 
Court  judge,  who  magnifies  his  office,  declared  recently  that  his  Court 
was  more  important  than  the  Supreme  Court  in  the  same  city,  because, 
while  it  dealt  for  the  most  part  with  property  only,  he  was  dealing 
with  human  lives. 

Moreover,  judges  also,  as  well  as  people,  are  apt  to  have  their 
feelings  strongly  aroused  when  great  crimes  are  committed.  They 
become  interested  in  following  the  prosecutions  connected  with  them 
to  such  an  extent  that  if  family  difficulties  are  presented  in  the  midst 
of  them  they  seem  to  be  of  such  minor  importance,  relatively,  that  they 
are  apt  not  to  receive  proper  consideration.  The  mingling  of  these 
abnormal  personal  problems  with  the  perplexities  of  ordinary  family 
life  is,  therefore,  objectionable  in  the  same  way  as  the  contact  with 
cases  involving  property;  and  the  attention  to  the  question  of  non- 
support and  desertion  is  best  associated  with  that  demanded  by  the 
children,  who  represent  the  other  part  of  the  family. 

Judges  Devoted  to  the  Work 

2.  Whatever  the  arrangement  about  the  work  of  the  Court  may 
be,  good  results  cannot  be  obtained  if  the  judges  are  changed  from 
time  to  time.  It  is  necessary,  not  only  that  the  judge  hear  the  same 
class  of  cases,  but  that  he  hear  the  case  relating  to  the  same  people 
when  it  is  continued,  or  for  any  reason  the  parties,  or  either  of  them, 
again  appear  in  Court,  in  order  that  he  may  be  entirely  familiar  with 
all  the  circumstances  and  reach  his  conclusions  in  the  light  of  them. 

The  work  of  such  a Court  can  best  be  done  by  a judge  who1 
realizes  fully  the  importance  of  the  problems  with  which  he  is  dealing, 
and  by  a kind  of  natural  selection  such  men  are  likely  to  be  chosen 
for  such  places.  The  experience  which  follows,  and  the  opportunities 
which  arise  for  making  a deep  impression  upon  the  lives  of  many 
families  in  restoring  the  normal  relations  which  are  the  foundation  of 
society,  tend  to  increase  the  interest  which  such  a judge  finds  in  his  . 
duties,  and  to  make  him  still  better  able  to  handle  in  a broad  and 
effective  way  the  many-sided  cases  which  daily  come  before  him. 

It  is  evident  that  such  a Court,  being  specially  fitted  to  decide 
them  correctly  and  carefully,  should  have  jurisdiction  of  all  cases 


28 


of  non-support  and  desertion;  it  is  also  necessary  that  this  jurisdiction 
should  be  complete,  so  that  the  Court  may  be  able  to  follow  the  right 
course  instead  of  having  to  divide  the  responsibility,  or  instead  of 
being  obliged  after  a certain  point  to  pass  the  cases  on  to  a higher 
Court,  which  is  certain  to  be  less  familiar  with  them  and  in  which 
totally  different  views  may  be  taken. 

Hard  Labor  Absolutely  Essential 

3.  The  punishment  should  always  be  with  hard  labor — the 

* harder  the  better.  No  non-support  law  can  be  effective  without  this 

stimulus  to  the  delinquent  husband ; and  it  should  be  certain,  not 
optional  with  the  judge.  We  know  it  is  needed,  and  it  should  be 
the  invariable  accompaniment  of  the  sentence. 

In  many  cases  there  are  no  provisions  for  work  in  jails,  but 
there  are  miles  and  miles  of  public  streets  and  roads  in  every  city 
and  county  which  need  to  be  cleaned  and  kept  in  order,  and  deserters 
are  not  such  criminals  as  to  require  a very  strong  guard  to  prevent 
escape.  As  to  the  objection  that  work  in  public  exposes  a man  to  the 
disgrace  of  being  stared  at,  no  man  can  be  put  to  work  on  the  streets 
in  the  execution  of  such  a sentence  who  is  not  able  to  escape  the 
punishment  if  he  tries,  and  under  a proper  administration  of  the  law 
he  can  have  the  sentence  suspended  at  any  time  when  he  is  willing  to 
perform  his  duties.  There  need  be  no  hesitation,  therefore,  in  making 
him  work  in  a public  place  if  he  can  be  most  useful  there,  and  so  far 
as  exposure  to  public  gaze  is  concerned,  if  it  shortens  the  time  it 
takes  to  accomplish  the  result  required,  it  will  be  an  advantage. 

Compensation  to  Family  Also  Important 

4.  There  should  be  some  reasonable  compensation  for  this  labor, 
which  should  be  certain.  Oregon  had  a provision  in  its  non-support 
law  of  1907  that  men  might  be  compelled  to  work  on  the  public  roads, 
and  that  the  County  Court  in  its  discretion  might  pay  to  the  family 
not  to  exceed  $1.50  per  day,  but  I cannot  find  that  anything  was  ever 
paid.  Indiana  and  Maryland  each  enacted  a law  in  1907  providing 
that  the  excess  earnings  of  men  confined  in  the  workhouse  for  non- 
support might  be  paid  to  the  family,  but  not  a dollar  has  ever  been 
paid  in  either  state,  and  the  wives  and  children  seem  to  be  in  the 
position  of  the  hungry  boy  who  asked  for  the  core  of  the  apple  which 
his  companion  was  devouring,  and  was  told  that  there  “wasn’t  going 
to  be  any  core.”  Colorado  also  passed  a law  in  1907  for  making  jail 
prisoners  work  eight  hours  a day,  “when  possible,”  and  in  that  case 
paying  the  families  of  men  confined  for  non-support  from  fifty  cents 


29 


to  $1.00  per  day;  but  nothing  has  been  paid  under  this.  One  explana- 
tion is  that  usually  the  jailer  has  a contract  for  feeding  the  men  at 
so  much  per  day,  and  does  not  want  to  do  anything  to  diminish  the 
popularity  of  his  resort,  or  increase  the  amount  of  food  consumed 
on  his  contract.  A law  just  passed  provides  for  many  things  buH; 
omits  this.  Such  laws  are  of  no  value,  and  show  that  the  provision 
should  not  be  permissive  and  variable,  but  mandatory  as  to  a fixed 
rate  of  compensation. 

In  Maine,  too,  the  provision  in  the  law  of  1907  for  paying  fifty 
cents  per  day,  which  was  stricken  out  in  1909,  though  not  much  seems 
to  have  been  done  under  it,  has  been  restored  this  year. 

In  Michigan  the  law  of  1907  as  to  such  payments  has  had  more 
effect,  and  the  state  prison  had  paid  up  to  this  year  to  families  of 
eighteen  men,  $3,251.65.  No  payments  prior  to  1910  were  made  in 
the  Detroit  House  of  Correction,  but  in  that  year  seven  families  got 
$785.22.  The  city  of  Detroit  has  begun,  since  July  1,  1910,  to  appro- 
priate $5,000  annually  for  the  Poor  Commission  of  the  city  to  pay 
not  to  exceed  $1.00  per  day  to  the  dependent  family  of  a man  confined 
there  for  any  offense,  which  the  large  surplus  earned  well  enables 
them  to  do. 

In  the  District  of  Columbia  the  provision  in  the  law  of  March 
23,  1906,  for  paying  fifty  cents  per  day  is  positive,  and  this  feature 
of  it  has  proved  to  be  of  the  greatest  assistance  in  administering 
the  law.  Ohio  has  had  the  same  experience  in  regard  to  the  state  law 
passed  two  years  later,  in  1908,  granting  forty  cents  per  day  to  the 
families  of  non-supporters  sent  to  the  workhouse,  the  net  amount  of 
the  Toledo  workhouse  law,  which  was  in  operation  for  several  years 
prior  to  1905. 

The  advantage  of  such  a provision  is  that  it  permits  the  judge 
to  punish  the  man  without  also  punishing  the  family.  The  average 
weekly  order  in  the  District  is  approximately  $5,  so  that  while  the 
man  is  in  the  workhouse  the  family  gets  sixty  per  cent  of  this.  The 
effect  on  the  men  is  salutary,  and  although  the  sentence  is  usually 
for  six  months  or  a year,  the  average  length  of  confinement,  until 
the  men  are  willing  to  come  out  and  support  their  families  in  accord- 
ance with  the  judge’s  orders,  was  only  forty-four  days  in  1909  and 
sixty  days  in  1910.  In  Judge  Addams’s  Court,  in  Cleveland,  the  aver- 
age time  was  seventy-eight  days  in  1909  and  ninety-eight  days  in  1910. 
As  a machine  for  relieving  the  state  of  the  expense  of  supporting 
either  the  man  or  his  family  this  arrangement  more  than  pays  for 
itself,  and  the  idea  that  the  money  paid  for  the  labor  is  a burden  to 
the  state  or  county  is  a decided  mistake. 


30 


California  has  just  passed  a law  for  working-  such  prisoners  on 
the  public  roads  and  paying  the  family  not  exceeding  $1.50  per  day; 
Massachusetts  has  passed  a law  which  contemplates  the  payment  of 
fifty  cents  per  day,  New  Jersey  has  enacted  a similar  law  as  to  two 
institutions  and  Utah  is  said  to  have  made  some  provision  for  such 
payments.  Much  good  is  to  be  hoped  for  from  these  laws,  but  they 
need,  for  the  best  results,  the  spirit  of  the  supervisor  at  Roanoke,  V a., 
where,  under  the  state  law,  men  under  sentence  are  compelled  to  work 
in  the  chain  gang,  and  he,  although  not  obliged  to,  gives  the  families 
from  $2.00  to  $2.50  per  week  when  they  do  this.  The  example  may 
be  commended  to  officials  in  larger  cities  in  other  states  who  do  not 
seem  to  have  done  all  they  could  under  some  of  the  laws  above 
referred  to. 


Results  of  Compensation  in  Washington 

To  encourage  this  movement  the  results  for  four  years  in  the 
District  of  Columbia,  which  show  that  the  amount  paid  for  the  earn- 
ings of  prisoners,  partly  on  account  of  the  small  appropriation  for  the 
first  two  years,  was  less  than  five  per  cent  of  the  total  amount  which 
they  so  largely  assisted  the  Court  in  collecting  from  men  under 
sentence,  are  given  here : 


Fiscal  year 
Ended 

June  30 

Appr.  Made  for 
Payment  of 
Earnings 

Paid  for  Earnings 
of  Men  Under 
Sentence 

Col.  from  Men 
Under  Suspended 
Sentence 

Totals 

1907 

$200.00 

$200.00 

$6,050.59 

$6,250.59 

1908 

200.00 

190.50 

21,888.56 

22,079.06 

1909 

2,400.00 

2,340.00 

38,319,65 

40,659.65 

1910 

2,000.00 

1,692.50 

34,077.88 

QC 

77 

Total, 

$4,800.00 

$4,423.00 

$100,336.68 

$104,759.68 

The  appropriation  for  the  next  fiscal  year  has  been  increased  to 
$3,500  and  the  collections  so  far  for  this  year  have  been  at  the  rate 
of  about  $36,000. 


Probation  Officers  Needed 

5.  The  Court  in  which  cases  are  tried  should  have  an  adequate 
force  of  probation  officers,  in  order  to  be  able  to  investigate  the  cases 
carefully  before  the  Court  renders  its  decision,  and  also  to  follow  up 
the  men  released  on  orders  to  support  and  see  that  payments  are 
regularly  made.  The  complicated  nature  of  the  offense  renders  this 
preliminary  work  by  a skillful  probation  officer  very  important,  and 
with  it  the  judge  can  rule  far  more  intelligently  than  if  he  has  tcj 


31 


balance  the  conflicting  statements  of  a man  and  woman  whose  feel- 
ings are  aroused  by  domestic  differences.  In  Judge  Addams’s  Court, 
in  Cleveland,  under  skillful  treatment,  many  cases  are  settled  without 
coming  before  the  Court  at  all,  and  when  they  are  brought  the  Judge 
has  a full  statement  of  the  circumstances  by  the  probation  officer  as 
a guide  to  aid  him  in  developing  the  evidence.  If,  when  released  on 
probation,  the  man  fails  to  pay  regularly  a notice  is  promptly  sent 
and  the  probation  officer  follows  it  up. 

This  is  in  striking  contrast  with  the  situation  which  has  prevailed 
in  New  Jersey,  in  which  it  was  necessary  for  the  wife  to  first  convince 
the  overseer  of  the  poor  that  it  was  worth  while  to  make  the  com- 
plaint, next  to  appear  against  her  husband  in  Court,  and  after  that 
to  follow  up  the  collections  in  case  he  failed  to  pay  as  ordered.  As  the 
superintendent  of  one  of  the  leading  charitable  associations  of  tihe 
state  says  : 

“No  better  system  could  be  devised  for  disturbing  the  family  relation- 
ship and  making  family  trouble.” 

In  another  city  in  Ohio,  where  a competent  and  interested  agent 
acts  as  probation  officer,  investigating  the  cases  carefully,  not  one 
out  of  the  95  brought  in  1909  and  115  in  1910,  or  210  in  all,  was* 
dismissed,  each  man  being  either  imprisoned  or  released  on  an  order 
to  support. 

One  great  element,  an  element  which  has  ministered  largely  to 
the  success  of  the  Domestic  Relations  Court  in  Buffalo,  is  the  thorough 
supervision  exercised  by  the  probation  officers ; and  the  same  testi- 
mony comes  from  New  Albany,  Indiana,  and  numerous  other  cities 
of  intermediate  size. 

In  the  District  of  Columbia  the  lack  of  probation  officers  for 
adults  in  the  Juvenile  Court  is  supplied  through  the  effective  co-opera- 
tion of  the  police,  by  whom  the  collections  are  made  and  who  observe 
the  men  as  they  pay  over  the  money.  This  system  works  very  suc- 
cessfully, but  as  a rule  it  is  quite  essential  that  the  probation  force 
should  be  ample  and  that  it  should  be  wholly  under  the  direction  of 
the  Court,  ready  for  investigation  or  supervision.  r 

Systematic  Collection 

6.  In  order  to  secure  the  best  results  there  should  be  a sys- 
tematic method  of  making  collections.  This  can  best  be  done  by 
keeping  a record  of  the  orders,  and  the  dates  when  payments  are  due, 
in  the  Court,  just  as  maturing  obligations  are  watched  in-  a bank,  and 
by  promptly  following  up  any  delinquent  through  the  probation 


32 


officers.  Men  who  will  pay  a small  sum  each  week  if  watched  will  be 
less  likely  to  pay  if  the  sums  are  allowed  to  accumulate.  One  order 
recently  looked  up  in  Pennsylvania,  which  was  made  in  1907  and  on 
which  the  man  had  paid  nothing  since,  showed  that  he  owed  on  it 
over  $600 — more  than  he  could  earn  in  a year. 

Situations  like  this  are  apt  to  arise  where  no  attention  is  paid 
to  the  matter  by  the  Court  unless  the  wife  complains ; and  it  is  quite 
important  that  the  Court  should  know  whether  its  orders  are  being 
obeyed  or  not,  in  order  to  know  whether  the  occasion  for  them  still 
exists  or  not. 

In  some  places  it  is  customary  to  order  the  payment  to  be  made 
directly  to  the  wife,  and  this  would  be  the  best  way  if  only  the 
Court  knew  that  the  payments  were  being  made,  because  it  brings 
in  no  outside  influence  between  husband  and  wife.  In  Columbus, 
however.  Judge  Black  found  that  this  led  to  uncertainty  and  jangling, 
and  therefore  changed  the  system  so  as  to  have  all  money  paid  through 
the  Court. 

It  has  been  objected  to  the  system  in  Washington  that  it  inter- 
feres with  the  normal  family  life  to  have  a blue-coated  officer  act  as 
intermediary  between  the  man  who  earns  the  money  and  the  wife 
who  disburses  it  for  the  family.  The  criticism  deserves  careful  con- 
sideration, but  in  the  choice  between  the  two  evils  of  official  contact 
with  the  family  and  of  allowing  the  Court’s  orders  to  be  disobeyed 
from  lack  of  supervision,  it  is  well  to  err  on  the  side  of  eniorcing 
the  Court's  decrees,  with  the  expectation  that  as  soon  as  the  necessity 
ceases  the  Court  will  relieve  itself  of  the  burden  of  supervision. 

Order  to  Support  as  Long  as  Necessary 

7.  The  law  should  provide  that  the  order  to  support  shall  con- 
tinue so  long  as  the  Court  thinks  it  necessary.  This  is  the  case  now 
in  Nebraska,  in  Iowa,  and  in  some  other  states.  When  the  District 
law  was  enacted  there  was  doubt  as  to  whether  it  would  be  possible 
to  secure  its  passage  if  the  time  of  the  order  was  made  too  long, 
and  it  was  accordingly  fixed  at  one  year,  to  which  it  was  necessary  to 
limit  the  length  of  the  sentence  in  order  to  give  the  Police  Court  or 
Juvenile  Court  jurisdiction.  Experience  has  shown  that  many  cases 
are  not  settled  within  the  year,  and  in  order  to  continue  the  payments 
which  men  are  willing  to  make  it  is  necessary  for  them  to  be  again 
brought  into  Court,  which  occasions  perplexity  and  annoyance.  Under 
the  Pennsylvania  law  of  1867,  as  has  been  stated,  collections  can  run 
on  indefinitely,  and  no  injustice  has  developed.  It  is  safe  to  leave  the 
question  of  dismissing  the  case  from  further  consideration  to  the 


33 


Court ; and  by  extending  the  time  in  this  way  it  is  possible,  without 
increasing  the  severity  of  the  sentence,  to  have  in  reserve  imprison- 
ment for  a year,  or  the  unexpired  portion  of  it,  with  hard  labor,  as  a 
stimulus  to  good  conduct  and  regular  payments. 

Any  Person  May  Make  the  Complaint 

8.  Any  person  may  make  the  complaint  when  an  offense  against 
the  public  has  been  committed.  The  agent  of  any  organization  inter- 

i 

ested  in  such  cases  already  has  this  right,  therefore,  and  the  only 
question  is  as  to  how  or  when  it  shall  be  exercised.  In  many  cases 
it  is  better  that  the  case  should  be  begun  by  some  one  other  than  the 
wife.  Usually  she  is  the  proper  person  to  do  this,  but  when  she  is 
deterred  by  fear,  or  there  is  a probability  that  the  chance  of  recon- 
ciliation will  be  less  if  she  acts,  some  one  else,  with  a knowledge  of 
the  facts,  some  good  probation  officer  who  has-been  looking  after 
the  children,  some  agent  of  a Humane  Society  who  has  discovered 
conditions  in  the  family  which  demand  attention,  may  do  so.  It  is 
proper  to  respect  the  family  relations  when  they  are  normal,  but 
often  they  are  not. 

Illegitimate  Children 

9.  As  to  including  illegitimate  children  in  the  law,  fifty-four 
replies  .out  of  sixty-one  to  the  question  think  they  should  be  included, 
though  of  these  seven  say  they  have  had  no  experience,  and  only  seven 
say  that  the  present  law  is  adequate,  or  express  any  doubt  about  includ- 
ing them.  In  Ohio  and  Nebraska,  where  they  have  been  for  some 
time  included  in  the  non-support  laws,  those  who  have  the  responsi- 
bility for  looking  after  non-support  cases  say  emphatically  that  they 
should  be  included,  and  that  none  of  the  injustice  or  blackmail  feared 
has  been  known;  and  the  sentiment  in  Wisconsin,  where  they  have 
been  included  for  six  years,  supports  this.  In  many  cases  present  laws 
embrace  only  a civil  proceeding,  with  adequate  support  for  a limited 
number  of  years,  and  in  some  states  there  are  no  laws.  The  question 
of  including  them,  therefore,  depends  on  local  conditions,  but  it  is 
important  that  in  one  way  or  other  support  for  them  be  ensured. 

Certainty  an  Important  Element 

10.  The  entire  proceeding  should  be  certain  in  its  operation,  so 
that  the  wife  who  complains  and  the  man  who  is  complained  of  will 
know  what  to  expect.  If  the  wife  feels  that  little  interest  will  be 


34 


taken  in  the  case,  or  that  if  she  presses  her  complaint  a punishment 
unduly  severe,  depriving  her  absolutely  of  support  for  a long  period, 
may  be  the  result,  she  will  suffer  long  before  instituting  proceedings, 
or  perhaps  fail  to  support  them  when  begun.  If  the  man  hopes  that, 
for  lack  of  investigation,  his  plausible  excuse  will  be  accepted  or  that, 
if  it  is  not,  nothing  worse  can  happen  than  a period  of  idleness  in  a 
jail  from  which  the  supplications  of  his  pliant  wife  will  bring  him 
/elease,  he  is  encouraged  to  continue  his  shiftless  course. 

If,  on  the  other  hand,  the  Court  has  power  to  promptly  hear  and 
promptly  determine  the.  cases,  after  securing  full  information  as  to 
the  facts  through  a competent  probation  officer,  and  to  impose 
imprisonment  for  a year  with  labor  that  is  actually  hard,  to  which 
may  be  added  a fine  up  to  $500  which  the  man  may  be  compelled  to 
work  out,  if  the  Court  orders,  at  the  rate  of  not  more  than  one- dollar 
per  day,  the  non-supporting  husband  is  confronted  by  a prospect 
which  is  not  inviting.  If  it  is  also  known,  from  the  experience  in  such 
cases  as  have  come  before  the  Court,  that,  if  deserved,  such  a punish- 
ment will  be  inflicted,  the  expectation  of  possible  leniency  will  be 
removed.  If,  at  the  same  time,  there  is  a provision  by  which  the 
family  will  receive  fifty  cents  per  day  so  long  as  the  man  performs 
in  confinement  the  enforced  hard  labor,  the  wife  can  be  depended  upon 
to  support  the  judge  in  his  desire  to  inflict  such  punishment  as  the 
offense  deserves  ; and  if  she  and  the  man  both  know  that  as  soon  as  he 
is  ready  to  resume  the  discharge  of  his  proper  obligations  to  his  family 
the  judge  will  release  him  in  order  that  he  may  do  so,  it  is  apparent 
that  wre  have  a complete  piece  of  legal  machinery  which  the  judge 
can  regulate  so  that  he  knows  it  will  produce  the  results  which  he 
desires,  and  which  is  economical  because  there  is  nothing  to  interfere 
with  the  operation,  which  can  be  stopped  as  soon  as  it  is  no  longer 
needed. 

A Uniform  Law 

It  is,  perhaps,  not  essential  that  there  be  uniformity  in  non- 
support and  desertion  laws,  but  the  selection  of  the  best  tends  to  uni- 
formity, and  if  the  selection  had  been  intelligently  made  in  laws 
enacted  in  the  last  six  years  some  mishaps  would  have  been  avoided. 

The  Commission  on  Uniform  State  Laws,  after  several  years 
study  and  deliberation,  adopted  a uniform  law  at  its  meeting  in  August 
last,  which  has  already  been  passed  by  Kansas,  Massachusetts,  and 
perhaps  other  states,  and  was  introduced  in  Pennsylvania,  Rhode 
Island  and  some  others.  On  the  principle  that  its  work  should  not 
be  too  radical,  and  should  take  the  line  of  least  resistance,  the  Com- 


35 


mission  left  the  grade  of  the  crime  and  the  matter  of  hard  labor  unde- 
cided, expecting  the  states  to  settle  those  points  as  they  saw  fit.  A 
modified  form,  which  clears  up  these  points  as  indicated  in  the  fore- 
going discussion,  and  makes  several  minor  changes  which  further 
study  has  suggested,  but  which  in  other  respects  follows  the  language 
of  the  Uniform  Law,  is  here  submitted  as  follows : 

AN  ACT 

Relating  to  Desertion  or  Non-Support  of  Wife  or  Children,  and 
providing  punishment  therefor;  and  to  promote  Uniformity  between 
the  States  in  reference  thereto. 

Section  1.  Be  it  enacted  by,  etc.:  That  any  husband  who  shall, 
without  just  cause,  desert  or  wilfully  neglect  or  refuse  to  provide  for 
the  support  and  maintenance  of  his  wife  in  destitute  or  necessitous 
circumstances ; or  any  parent  who  shall,  without  lawful  excuse,  desert 
or  wilfully  neglect  or  refuse  to  provide  for  the  support  and  mainte- 
nance of  his  or  her  (legitimate  or  illegitimate)  child  or  children  under 
the  age  of  sixteen  years  in  destitute  or  necessitous  circumstances,  shall 
be  guilty  of  a misdemeanor  and,  on  conviction  thereof,  shall  be  pun- 
ished by  a fine  of  not  exceeding  five  hundred  dollars,  or  by  imprison- 
ment in  the  

(1)  with  hard  labor  for  not  exceeding  one  year,  (2)  or  both;  and 
should  a fine  be  imposed  it  may  be  directed  by  the  Court  to  be  paid 
in  whole  or  in  part  to  the  wife  or  to  the  guardian,  curator,  custodian 
or  trustee  of  the  said  minor  child  or  children. 

Section  2.  Proceedings  under  this  Act  may  be  instituted  upon 
complaint  made  under  oath  or  affirmation  by  the  wife  or  child  or 
children,  or  by  any  other  person,  against  any  person  accused  of  either 
of  the  above-named  offenses.  Juvenile  Courts  shall  have  original  and 
concurrent  jurisdiction  in  all  cases  arising  under  this  Act.  Justices 

of  the  peace,  police,  city  and  Courts 

may  try  any  case  arising  under  this  Act,  and  if,  in  the  opinion  of  such 
justice  or  Court,  no  greater  punishment  ought  to  be  imposed,  may 
render  judgment  therein,  in  the  case  of  justices  of  the  peace  for 


(1)  The  place  of  imprisonment  will  be  governed  by  the  local  laws. 

(2)  While  there  may  be  no  objection  to  making  the  term  of  imprisonment  two  years, 
as  in  the  Uniform  Law,  in  states  where  this  docs  not  make  the  offense  felony,  and  for  this 
reason  or  some  other  deprive  the  lower  courts  of  jurisdiction  in  the  case,  experience  shows 
that  the  power  to  imprison  for  one  year  with  hard  labor,  especially  if  the  possible  fine  must 
be  worked  out  in  addition,  is  ample,  and  the  Modified  Form  has  been  worded  accordingly. 


36 


imprisonment  not  exceeding  

and  in  the  case  of  

for  imprisonment  not  exceeding  

subject  to  the  right  of  the  accused  to  appeal  as  provided  by  law  in 
other  cases.  (3) 

Section  3.  At  any  time  before  the  trial,  upon  petition  of  the 
> complainant  and  upon  notice  to  the  defendant,  the  Court,  or  a judge 

thereof  in  vacation,  may  enter  such  temporary  order  as  may  seem 
just,  providing  for  the  support  of  the  deserted  wife  or  children,  or 
* both,  pendente  lite,  and  may  punish  for  violation  of  such  order  as 

for  contempt. 

Section  4.  Before  the  trial,  with  the  consent  of  the  defendant, 
or  at  the  trial,  on  entry  of  a plea  of  guilty,  or  after  conviction,  instead 
of  imposing  the  penalty  hereinbefore  provided,  or  in  addition  thereto, 
the  Court  in  its  discretion,  having  regard  to  the  circumstances,  and  to 
the  financial  ability  or  earning  capacity  of  the  defendant,  shall  have 
the  power  to  make  an  order,  which  shall  be  subject  to  change  by  the 
Court  from  time  to  time,  as  circumstances  may  require,  directing  the 
defendant  to  pay  a certain  sum  periodically  to  the  wife,  or  to  the 
guardian,  curator  or  custodian  of  the  said  minor  child  or  children, 
or  to  an  organization  or  individual  approved  by  the  Court  as  trustee, 
and  to  release  the  defendant  from  custody  on  probation,  upon  his  or 
her  entering  into  a recognizance,  with  or  without  surety,  in  such  sum 
as  the  Court  or  a judge  thereof  in  vacation  may  order  and  approve. 
The  condition  of  the  recognizance  shall  be  such  that  if  the  defendant 
shall  make  his  or  her  personal  appearance  in  Court  whenever  ordered 
to  do  so,  and  shall  further  comply  with  the  terms  of  such  order  of 
support,  or  of  any  subsequent  modification  thereof,  then  such  recog- 
nizance shall  be  void,  otherwise  in  full  force  and  effect. 

Section  5.  If  the  Court  be  satisfied  by  information  and  due 
proof  under  oath  that  the  defendant  has  violated  the  terms  of  such 
order,  it  may  forthwith  proceed  with  the  trial  of  the  defendant  under 
. the  original  charge,  or  sentence  him  or  her  under  the  original  convic- 

tion, or  enforce  the  suspended  sentence,  as  the  case  may  be.  In  case 


(•1)  It  is  quite  important  that  delay  and  additional  expense  be  avoided  by  having  the 
lowest  courts  empowered  to  pass  sentence  and  enforce  the  law  in  non-support  and  desertion 
cases.  In  some  states  these  lower  courts  do  not  have  jurisdiction  of  crimes  involving  im- 
prisonment for  a year,  and  without  such  authority  could  only  bind  over  to  a higher  court 
instead  of  trying  the  case.  Such  a provision  as  this  is  therefore  necessary  in  such  states, 
and  it  should  be  worded  in  accordance  with  existing  laws  in  each  state  as  to  the  jurisdiction 
of  the  lower  courts.  The  lower  court  can  always  bind  over  in  cases  involving  a heavier 
punishment  than  it  is  able  to  inflict.  The  Connecticut  Act  of  July  6,  1905,  is  an  example 
of  this. 


37 


of  forfeiture  of  a recognizance,  and  enforcement  thereof  by  execution, 
the  sum  recovered  may,  in  the  discretion  of  the  Court,  be  paid  in 
whole  or  in  part  to  the  wife,  or  to  the  guardian,  curator,  custodian  or 
trustee  of  the  said  minor  child  or  children. 

Section  6.  No  other  or  greater  evidence  shall  be  required  to 
prove  the  marriage  of  such  husband  and  wife,  or  that  the  defendant 
is  the  father  or  mother  of  such  child  or  children,  than  is  or  shall  be 
required  to  prove  such  facts  in  a civil  action.  In  no  prosecution  under 
this  Act  shall  any  existing  statute  or  rule  of  law  prohibiting  the  dis- 
closure of  confidential  communications  between  husband  and  wife 
apply,  and  both  husband  and  wife  shall  be  competent  and  compellable 
(4)  witnesses  to  testify  against  each  other  to  any  and  all  relevant 
matters,  including  the  fact  of  such  marriage  and  the  parentage  of 
such  child  or  children.  Proof  of  the  desertion  of  such  wife,  child  or 
children  in  destitute  or  necessitous  circumstances  or  of  neglect  or 
refusal  to  provide  for  the  support  and  maintenance  of  such  wife, 
child  or  children  shall  be  prima  facie  evidence  that  such  desertion, 
neglect  or  refusal  is  wilful. 

Section  7.  An  offense  under  this  act  shall  be  held  to  have  been 
committed  in  any  county  in  which  such  wife,  child  or  children  may  be 
at  the  time  such  complaint  is  made.  (5)  It  shall  be  the  duty  of  the 
county  commissioners,  in  any  case  in  which  application  is  properly 
made  by  the  officers  responsible  for  the  execution  of  the  law,  to  pro- 
vide the  funds  necessary  for  extraditing  any  person  charged  with  an 
offense  under  this  act  who  has  gone  to  another  state.  (6) 

Section  8.  It  shall  be  the  duty  of  the  sheriff,  warden  or  other 

official  in  charge  of  the  . (1), 

in  which  any  person  is  confined  on  account  of  a sentence  under  this 
act,  to  pay  over  to  the  wife,  or  to  the  guardian,  curator  or  custodian 
of  his  or  her  minor  child  or  children,  or  to  an  organization  or  indi- 
vidual approved  by  the  Court  as  trustee,  at  the  end  of  each  week,  for 
the  support  of  such  wife,  child  or  children,  a sum  equal  to  fifty  cents 
(7)  for  each  day's  hard  labor  performed  by  said  person  so  confined. 


(4)  It  is  of  the  greatest  importance  that  the  wife  should  be  a compellable  witness 
and  the  Uniform  Law  is  delective  in  not  protecting  this  point. 

(5)  This  provision  is  taken  from  the  Ohio  law,  where  it  was  added  to  remove  any 
doubt  as  to  the  right  to  brii  g the  suit  in  the  place  where  the  desertion  had  occurred,  and 
has  been  found  to  be  quite  desirable.  It  does  not  seem  to  have  resulted  in  any  injustice 
or  hardship  to  those  atcused,  but  there  the  law  relates  to  children  only. 

(6)  This  not  only  recognizes  the  right  of  extradition  for  the  offense,  but  removes 
the  obstacle  to  its  enforcement  which  sometimes  results  from  a conflict  of  responsibility, 
and  a failure  on  the  part  of  those  who  control  the  funds  to  realize  that  as  a rule  it  is  a 
financial  advantage  to  bring  back  deserters. 

(7)  This  amount  b ’ een  inserted  in  the  belief  that  it  is  as  nearly  right  as  possible. 
The  charge  against  the  in.  titution  should  not  be  too  high,  and  this  is  a fair  percentage  of 
the  average  order  made  by  the  court  under  suspended  sentence. 


38 


Section  9.  This  Act  shall  be  so  interpreted  and  construed  as 
to  effectuate  its  general  purpose  to  make  uniform  the  law  of  those 
states  which  enact  it. 

Section  10.  Repealing  clause. 

Section  11.  This  act  shall  take  effect  the  day 

of  Anno  Domini  19 


CONCLUSION 

It  is  important  that  we  take  a reasonable  view  of  this  subject, 
and  that  we  do  not  let  the  impulse  to  punish  make  us  forget  the  true 
purpose  of  the  law,  which  is  to  overcome  the  evil.  This  can  best 
be  done  by  making  the  offense  misdemeanor,  with  an  adequate  pun- 
ishment by  hard  labor  and  a reasonable  but  certain  compensation 
for  the  family,  so  that  all  non-support  cases,  whether  accompanied  by 
desertion  or  not,  can  be  tried  in  one  of  the  lower  Courts,  which  shall 
have  full  jurisdiction  in  working  promptly,  patiently  and  steadily  for 
the  best  results  to  the  family,  and  to  the  community. 

Washington,  D.  C. 

Tune  9,  1911. 


A 


N 


